Lesane v. Lafler

Filing 10

ORDER granting 5 Motion to Strike; denying 7 Motion for Summary Judgment. Signed by District Judge David M. Lawson. (THal)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION SCOTT LESANE, Petitioner, v. BLAINE LAFLER, Respondent. ________________________________________/ ORDER GRANTING THE PETITIONER'S MOTION TO STRIKE AND DENYING THE PETITIONER'S MOTION FOR SUMMARY JUDGMENT The petitioner, Scott Lesane, presently confined at the Carson City Correctional Facility in Carson City, Michigan, has filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted in Wayne County, Michigan of second-degree murder, assault with intent to commit great bodily harm less than murder, felon in possession of a firearm, and possession of a firearm during the commission of a felony. He was sentenced to imprisonment for minimum terms ranging from two to thirty years. The petitioner alleges that he is in custody in violation of his rights under the Sixth and Fourteenth Amendments to the U.S. Constitution. The respondent filed an answer to the petition, asserting that the petitioner's claims lack merit, are not cognizable on habeas review, or are procedurally defaulted. The matter is before the Court on the petitioner's motion to strike his habeas petition and to allow filing of the revised habeas petition and the petitioner's motion for summary judgment, which seeks to compel the Court to adjudicate the petitioner's motion to strike. In his initial habeas petition, filed on July 2, 2008, the petitioner asserts the following four claims: Case Number 08-12828 Honorable David M. Lawson

I. II. III. IV.

The trial court erroneously denied the petitioner's motion for a directed verdict of acquittal; The trial counsel was ineffective for failing to request a jury instruction on voluntary manslaughter; The prosecutor's opening statement and closing arguments deprived the petitioner of a fair trial; and The trial court's jury instructions deprived the petitioner of a fair trial.

In his motion to strike, the petitioner seeks to strike his initial habeas petition and to substitute in its place a revised petition, which makes the following single argument: The state court[s] were incorrect when they found that there wasn't adequate provocation to support a request for manslaughter and counsel was ineffective for not doing so. A. B. Adequate provocation was apparent on the record at preliminary examination and Petitioner's trial. Counsel was ineffective for not requesting the lesser included offense of manslaughter.

The Court will accept and consider the petitioner's revised petition in place of his initial habeas corpus petition and supporting brief. The amended habeas petition will supercede the initial pleading. B & H Med., LLC v. ABP Admin., Inc., 526 F.3d 257, 268 n.8 (6th Cir. 2008) (citing Drake v. City of Detroit, 266 F. App'x. 444, 448 (6th Cir. 2008)). Accordingly, it is ORDERED that the petitioner's motion to strike [dkt #5] is GRANTED. It is further ORDERED that the petitioner's motion for summary judgment [dkt # 7] is DENIED. s/David M. Lawson DAVID M. LAWSON United States District Judge Dated: May 18, 2009

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PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on May 18, 2009. s/Lisa M. Ware LISA M. WARE

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