Threatt v. Birkett

Filing 86

ORDER denying 73 Motion for Relief from judgment, Motion to Amend and 78 Motion for Reconsideration. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ANTHONY THREATT,
Case Number: 2:06-CV-11742

Petitioner,

HON. GEORGE CARAM STEEH

v.
THOMAS BIRKETT,
Respondent.
/

ORDER DENYING PETITIONER’S MOTION FOR RELIEF FROM
JUDGMENT, MOTION TO AMEND, AND MOTION FOR RECONSIDERATION
Petitioner Anthony Threatt, presently confined at the Saginaw Correctional
Facility in Freeland, Michigan, filed a petition for a writ of habeas corpus. He challenged
his convictions for aggravated stalking and fourth habitual offender. The Court denied
the petition on February 29, 2008. On December 18, 2009 and July 29, 2010, Petitioner
filed motions to amend, which also sought relief under Federal Rule of Civil Procedure
60(b). The Court granted the motions to amend, but held that they were successive
habeas petitions and transferred them to the United States Court of Appeals for the
Sixth Circuit for an order authorizing their filing. The Court of Appeals held that the July
29, 2010, Rule 60(b) motion was a successive motion and declined to grant
authorization under 28 U.S.C. § 2244(b)(3). In re: Anthony Threatt, No. 10-2069 (6th
Cir. Apr. 8, 2011). The Court of Appeals held that the July 29, 2010, motion was not a
successive petition because it claimed an error in this Court’s finding that all but one of

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Petitioner’s habeas claims were procedurally defaulted and remanded the case to this
Court to address the Rule 60(b) challenge to the procedural default ruling. Id. at 2-3.
“Rule 60(b)(6) should apply ‘only in exceptional or extraordinary circumstances
which are not addressed by the first five numbered clauses of the Rule.’” Olle v. Henry
& Wright Corporation, 910 F.2d 357, 365 (6th Cir. 1990). It is invoked only in those
“unusual and extreme situations where principles of equity mandate relief.” Id.
(emphasis in original). Rule 60(b)(6) exists to allow courts to vacate judgments
whenever such action is appropriate to accomplish justice in extraordinary
circumstances. Klapprott v. United States, 335 U.S. 601, 614–15 (1949).
Petitioner argues that the Court was incorrect in its procedural ruling because (i)
the state court failed to consider each of his claims individually before denying relief
under Mich. Ct. R. 6.508(D); (ii) he exhausted his ineffective assistance of appellate
counsel claim; and (iii) he established cause and prejudice to excuse his default. None
of the arguments advanced by Petitioner present an unusual or extreme situation that
would mandate the relief he seeks. The state court relied on a clearly-established
procedural rule in denying Petitioner’s defaulted claims. See People v. Threatt, No. 00004840-01 (Wayne County Cir. Ct. Nov. 18, 2003) (“All of these issues could have been
raised in his prior appeal. Defendant has failed to demonstrate good cause for failure to
raise them on appeal, and actual prejudice resulting from the alleged errors.”). There is
no requirement that the state court address his claims individually before denying relief.
And, Petitioner presents no basis to call into question the Court’s decision that
Petitioner failed to establish cause and prejudice to excuse his default. Therefore, the
Court denies the motion.

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Also before the Court is Petitioner’s Motion to Amend/Correct Petition for Writ of
Habeas Corpus, in which he offers additional arguments in support of his habeas
petition. Pursuant to Federal Rule of Civil Procedure 15(a), leave to amend is “freely”
granted “when justice so requires.” See Fed. R. Civ. P. 15(a). The United States
Supreme Court has advised that a plaintiff should be allowed the opportunity to test a
claim on the merits if the facts and circumstances underlying the claim suggest that it
may be a proper subject of relief. Foman v. Davis, 371 U.S. 178, 182 (1962). However
the Court further instructed that a motion to amend a complaint should be denied if the
amendment is brought in bad faith or for dilatory purposes, results in undue delay or
prejudice to the opposing party, or would be futile. Id. Moreover, where final judgment
has been entered, the plaintiff cannot seek to amend the complaint “without first moving
to alter, set aside or vacate judgment pursuant to Rule 59 or Rule 60 of the Federal
Rules of Civil Procedure.” In re Ferro Corp. Derivative Litigation, 511 F.3d 611, 624 (6th
Cir. 2008) (citing Morse v. McWhorter, 290 F.3d 795, 799 (6th Cir. 2002)). “Unless
postjudgment relief is granted, the district court lacks power to grant a motion to amend
the complaint under Rule 15(a) of the Federal Rules of Civil Procedure.” Id. (internal
quotation marks and citation omitted). Post-judgment relief has not been granted in this
case, therefore, the Court denies Petitioner’s motion to amend. Accord Williams v.
Norris, 461 F.3d 999, 1003-04 (8th Cir. 2006) (affirming district court’s denial of motion
to amend habeas petition filed after district court issued order denying petition).
Finally, Petitioner seeks reconsideration of the Court’s Order denying his motion
to correct errors. Motions for reconsideration may be granted when the moving party
shows (1) a “palpable defect,” (2) by which the court and the parties were misled, and
(3) the correction of which will result in a different disposition of the case. E.D. Mich.
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L.R. 7.1(h)(3). A “palpable defect” is a “defect which is obvious, clear, unmistakable,
manifest or plain.” Olson v. The Home Depot, 321 F. Supp. 2d 872, 874 (E.D. Mich.
2004). The Court denied Petitioner’s motion because it was an attempt to amend a
petition that had been denied over three years earlier. Petitioner’s arguments for
reconsideration amount to a disagreement with the Court’s decision. A motion
predicated upon such argument fails to allege sufficient grounds upon which to grant
reconsideration. L.R. 7.1(h)(3); see also, Meekison v. Ohio Dept. of Rehabilitation and
Correction, 181 F.R.D. 571, 572 (S.D. Ohio 1998). Petitioner fails to demonstrate that
the Court’s decision was based upon a palpable defect by which the Court was misled.
Accordingly, the Court DENIES Petitioner’s Motion to Amend [dkt. # 73], Motion
for Reconsideration [dkt. # 78], and the portion of Petitioner’s Motion for Relief from
Judgment remanded to this Court [dkt. # 65].
SO ORDERED.
Dated: November 19, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 19, 2013, by electronic and/or ordinary mail and
also on Anthony Threatt #182625, Saginaw Correctional
Facility, 9625 Pierce Road, Freeland, MI 48623.
s/Barbara Radke
Deputy Clerk

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