McGuire v. Ludwick

Filing 19

OPINION AND ORDER denying 18 Motion for Reconsideration. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RODERICK ANDRE McGUIRE,
Petitioner,
v.

CASE NO. 2:07-CV-15399
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

NICK LUDWICK,
Respondent.
___________________________________/
OPINION AND ORDER DENYING THE MOTION FOR RECONSIDERATION
On August 11, 2009, this Court denied Petitioner’s habeas application brought
pursuant to 28 U.S.C. § 2254, but granted Petitioner a certificate of appealability with
respect to one of his claims and leave to appeal in forma pauperis. McGuire v. Ludwick,
No. 2:07-CV-15399, 2009 WL 2476452 (E.D. Mich. August 11, 2009).
On February 11, 2014, this Court denied Petitioner’s motions to extend the time to
file a notice of appeal. McGuire v. Ludwick, No. 2:07-CV-15399, 2014 WL 539787
(E.D. Mich. February 11, 2014).
Petitioner filed a motion for reconsideration. For the reasons that follow, the
motion for reconsideration is DENIED.
U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion for
reconsideration. However, a motion for reconsideration which presents the same issues
already ruled upon by the court, either expressly or by reasonable implication, will not be

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granted. Michigan Regional Council of Carpenters v. Holcroft L.L.C. 195 F. Supp. 2d
908, 911 (E.D. Mich. 2002)(citing to U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (g)(3)). A
motion for reconsideration should be granted if the movant demonstrates a palpable
defect by which the court and the parties have been misled and that a different disposition
of the case must result from a correction thereof. Id. A palpable defect is a defect that is
obvious, clear, unmistakable, manifest, or plain. Witzke v. Hiller, 972 F. Supp. 426, 427
(E.D. Mich. 1997).
Petitioner argues in his motion for reconsideration that the Court should grant his
motion for an extension of time to file an appeal, because he did not receive timely notice
of the Court’s decision from August 11, 2009 denying habeas relief.
The Court denied Petitioner’s motions for an extension of time to file an appeal
because they were untimely. A party asserting that he or she failed to receive prompt
notice of an order that he or she wishes to appeal may seek relief for filing an appeal
under either Federal Rule of Appellate Procedure 4(a)(5) or 4(a)(6). Zak v. United States,
133 F. 3d 451, 453 (6th Cir. 1998). Petitioner’s first motion to reopen the case was dated
December 26, 2013. Because Petitioner’s motion was filed more than 30 days after the
expiration of the time to file an appeal, Petitioner was unable to obtain an extension of the
time to file an appeal pursuant to Fed. R. App. P. 4 (a)(5). Petitioner was also unable to
use the provisions of Fed.R.App. P. 4(a)(6) to extend the time to file a notice of appeal,
because his requests to extend the time to file an appeal were filed more than 180 days
after this Court entered the order denying habeas relief. Because Petitioner filed his
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motions more than 180 days after the denial of his habeas corpus petition, the Court
lacked the authority to extend the time for filing an appeal. See Hall v. Scutt, 482 Fed.
Appx. 990, 991 (6th Cir. 2012).
Petitioner failed to show that this Court’s ruling was erroneous. Benton v. Booker,
403 Fed. Appx. 984, 985 (6th Cir. 2010), the case cited to by Petitioner, is inapplicable
because it did not involve a habeas petitioner seeking to extend the time to file an appeal
under Fed. R. App. P. 4 (a)(5) or (6) but dealt with a habeas petitioner who had been
unable to file objections to a magistrate judge’s report and recommendation because it
had been mailed to the wrong prison.
Petitioner failed to show that this Court erred in denying his motions to extend the
time to file an appeal. The motion for reconsideration will be denied, because Petitioner
merely presented issues which were already ruled upon by this Court, either expressly or
by reasonable implication, when the Court denied the motions to extend time to file an
appeal. Hence v. Smith, 49 F. Supp. 2d 549, 553 (E.D. Mich. 1999).
ORDER
Based upon the foregoing, IT IS ORDERED that the motion for reconsideration
[dkt. # 18] is DENIED.

S/VICTORIA A. ROBERTS
UNITED STATES DISTRICT COURT
DATED: 3/11/2014

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The undersigned certifies that a copy of this
document was served on the attorneys of record
and Roderick Andre McGuire by electronic means
or U.S. Mail on March 11, 2014.
S/Carol A. Pinegar
Deputy Clerk

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