Nali v. Phillips

Filing 97

OPINION and ORDER denying 94 Motion for Reconsideration. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FRANK NALI,
Petitioner,

Civil No. 2:07-CV-15487
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
THOMAS PHILLIPS,
Respondent.
___________________________/

OPINION AND ORDER DENYING THE MOTION FOR RECONSIDERATION
On June 20, 2013, this Court reopened petitioner’s case to the active
docket following the remand of the case from the United States Court of Appeals
from the Sixth Circuit for this Court to address petitioner’s remaining claims that
the Court had not previously considered. The Court denied petitioner’s motions
to amend the habeas petition, to appoint counsel, and for immediate release from
incarceration. With respect to the motion for immediate release from
incarceration, this Court concluded that petitioner’s release on parole rendered
moot his request to be immediately released from incarceration. See Townsend
v. Vasbinder, 365 Fed. Appx. 657, 660 (6th Cir. 2010). Petitioner has now filed a
motion for reconsideration from the Court’s denial of his motion for immediate
release. For the reasons that follow, the motion for reconsideration is DENIED.

1

Nali v. Phillips, 2:07-CV-15487
In his motion for reconsideration, petitioner contends that his request for
immediate release has not been rendered moot, because he sought in his motion
for immediate release not merely to be discharged from custody but to have his
sentence terminated.
U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion for
reconsideration. 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. Ward v. Wolfenbarger, 340 F. Supp. 2d 773, 774 (E.D. Mich. 2004)(citing
L.R. 7.1(g)(3)). A motion for reconsideration which merely presents “the same
issues ruled upon by the Court, either expressly or by reasonable implication,”
shall be denied. Id.
To the extent that petitioner seeks the termination of his sentence, such a
request is premature, because the Court has yet to adjudicate petitioner’s
remaining claims. A court can order the immediate release of a habeas petitioner
when granting the petitioner habeas relief. See e.g. Dolfi v. Pontesso, 156 F. 3d
696, 701 (6th Cir. 1998); Hall v. Eichenlaub, 559 F. Supp. 2d 777, 784 (E.D. Mich.
2008). Because this Court has yet to determine whether petitioner is entitled to
habeas relief on his remaining claims, his request for the termination of his
sentence is premature. The Court will reconsider petitioner’s request if after
2

Nali v. Phillips, 2:07-CV-15487
reviewing the petition for writ of habeas corpus, the respondent’s answer, and the
remaining pleadings, the Court determines that habeas relief is appropriate.
IT IS HEREBY ORDERED that the motion for reconsideration [Dkt. # 94] is
DENIED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: July 31, 2013
I hereby certify that a copy of the foregoing document was served upon
parties/counsel of record on July 31, 2013, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

3