Calloway v. McQuiggan

Filing 24

ORDER denying 23 petitioner's Motion for Reconsideration. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PHILLIP CALLOWAY,
Petitioner,
CASE NO. 2:11-CV-10005
HONORABLE GEORGE CARAM STEEH
HON. PAUL J. KOMIVES

v.
GREG MCQUIGGIN, Warden,
Respondent.
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ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION
Now before the court is Petitioner Phillip Calloway’s motion for reconsideration which
shall be denied for the reasons set forth below. Calloway filed an application for the writ
of habeas corpus pursuant to 28 U.S.C. § 2254 which the court referred to Magistrate
Judge Komives for a report and recommendation. On November 20, 2012, Magistrate
Judge Komives issued his report and recommendation. (Doc. 14). On that same date,
Magistrate Judge Komives issued a nondispositive order granting Petitioner’s motion to
amend as to one of the five unexhausted claims he sought to add, and denying his motion
to stay the case so that he could exhaust his state remedies, on the grounds that the new
claim was “plainly meritless.” (Doc. 13). Both sides filed the same objections to the report
and recommendation, complaining that Magistrate Judge Komives failed to address five
of the six unexhausted claims that Calloway sought to add. On April 23, 2013, this court
accepted in part and rejected in part that report and recommendation and set aside the
order denying the stay to the extent that it failed to address all of the unexhausted claims
Calloway sought to add.
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On May 2, 2013, Petitioner timely filed his motion for reconsideration alleging that
this court erred in ordering Respondent to file a response to his motion to amend and for
denying him the opportunity to exhaust his state remedies. Local Rule 7.1(h)(3) of the
Local Rules of the United States District Court for the Eastern District of Michigan provides:
Generally, and without restricting the court’s discretion, the court will not
grant motions for rehearing or reconsideration that merely present the same
issues ruled upon by the court, either expressly or by reasonable implication.
The movant must not only demonstrate a palpable defect by which the court
and the parties and other persons entitled to be heard on the motion have
been misled but also show that correcting the defect will result in a different
disposition of the case.
LR 7.1(h)(3). First, the court considers Calloway’s complaint that the Respondent should
not be allowed to respond to his motion to amend. Petitioner filed his motion to amend on
November 14, 2012.

Magistrate Judge Komives decided the motion to amend on

November 20, 2012 before Respondent had an opportunity to respond. To the extent that
the magistrate judge’s order failed to address all of the new claims that Calloway sought
to add, this court set aside that order, ordered the Respondent to respond, and referred the
matter to the magistrate judge to consider those new claims in the first instance. Under
these circumstances, Petitioner’s argument that this court is allowing the Respondent “two
bites at the apple” is unavailing.
Secondly, the court considers Petitioner’s complaint that he is being deprived the
opportunity to exhaust his state remedies. In the court’s April 23, 2013 order, this court
rejected the magistrate judge’s order denying Calloway’s request to stay the case to
exhaust his state remedies as to the five new claims that were not addressed in the
magistrate judge’s order. As to the unexhausted claims Calloway seeks to add, this court
referred the matter to the magistrate judge to determine if a stay should be granted or
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whether the claims were “plainly meritless” such that a stay should not be entered. See
Rhines v. Weber, 544 U.S. 269 (2005). The issue as to whether Petitioner should be
allowed to exhaust his state remedies as to the five new claims he seeks to add remains
very much alive as that issue has now been referred to Magistrate Judge Komives. Thus,
Petitioner’s argument that this court has deprived him of the opportunity to exhaust his
unexhausted claims is premature.
In sum, Petitioner has not shown any “palpable defect by which the court and the
parties . . . have been misled,” or that “correcting the defect will result in a different
disposition of the case.” Accordingly, Petitioner’s motion for reconsideration hereby is
DENIED.
SO ORDERED.
Dated: May 9, 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
May 9, 2013, by electronic and/or ordinary mail and also on
Phillip Calloway, #719693, Muskegon Correctional Facility
(MCF), 2400 S. Sheridan Drive, Muskegon, MI 49442.
s/Barbara Radke
Deputy Clerk

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