Burley v. Prelesnik

Filing 59

Order Denying Petitioner's 56 Motion for Court to take Judicial Notice and 58 Motion to Alter or Amend the Order on the Motion for a Certificate of Appealability. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDWARD DONALD BURLEY,
Petitioner,
Case No. 11-CV-11258
v.
HON. AVERN COHN
JOHN PRELESNIK,
Respondent.
__________________________________/
ORDER DENYING PETITIONER’S MOTION FOR COURT TO TAKE JUDICIAL
NOTICE (Doc. 56) AND MOTION TO ALTER OR AMEND THE ORDER ON THE
MOTION FOR A CERTIFICATE OF APPEALABILITY (Doc. 58)
I.
This is a habeas case under 28 U.S.C. § 2254. Edward Donald Burley,
(“Petitioner”), is a state inmate, serving a sentence of eighteen years, nine months to
forty years in prison for conspiracy to commit armed robbery, Mich. Comp. Laws Mich.
§§ 750.157a; 750.529. In 2011, Petitioner filed a pro se petition for writ of habeas
corpus claiming that he is incarcerated in violation of his constitutional rights. Petitioner
raised fifteen (15) claims. On September 7, 2012, the Court denied the petition, finding
no merit in any of Petitioner’s claims. (Doc. 39). The Court also denied Petitioner a
certificate of appealability. (Doc. 44). Petitioner filed a notice of appeal. (Doc. 41). The
case is currently pending in the Court of Appeals for the Sixth Circuit. Burley v.
Prelesnik, No. 12-2323.
On June 5, 2012, Petitioner filed a paper Styled “Petition/independent Action for
Relief from Judgment to Prevent a Grave Miscarriage of Justice” (Doc. 45). On June
17, 2013, Petitioner filed a paper styled “Amended Motion Pursuant to Rule 15(a)(2).”

(Doc. 46). The Court construed both filings as a single motion for leave to file a motion
for relief from judgment under Fed. R. Civ. P. 60(b). On July 1, 2013, the Court denied
the motion, noting that the Court lacked jurisdiction because the case was on appeal
and that leave would not be granted because the motion lacked merit. (Doc. 47).
Petitioner then moved for, and was granted, permission to extend the time in
which to file a notice of appeal from the Court’s July 1, 2013 order. (Doc. 50). Petitioner
subsequently filed a motion for a certificate of appealability with respect to the Court’s
July 1, 2013 order, which was denied on September 9, 2013. (Doc. 54). Petitioner filed
a notice of appeal with respect to the Court’s denial of the motion for relief from
judgment on August 30, 2013. (Doc. 51). Petitioner’s appeal from the denial of his
motion for relief from judgment remains pending in the Sixth Circuit. Burley v. Prelesnik,
No. 13-2201.
Petitioner has now filed a motion for the Court to take judicial notice of the
confiscation of his legal materials by prison staff. Petitioner has also filed a motion to
alter or amend the judgment entered on September 9, 2013 regarding Petitioner’s
motion for a certificate of appealability. For the reasons that follow, the motions will be
denied.
II.
A.
Petitioner has filed two notices of appeal in this case. (Docs. 41, 51). A notice of
appeal generally “confers jurisdiction on the court of appeals and divests the district
court of control over those aspects of the case involved in the appeal.” Marrese v.
American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985)(citing Griggs v.
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Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)( per curiam)); see also
Workman v. Tate, 958 F. 2d 164, 167 (6th Cir. 1992). Because Petitioner has filed
appeals, the Court lacks jurisdiction to amend its order denying Petitioner a certificate of
appealability. Workman, 958 F. 2d at 167-68; see also Raum v. Norwood, 93 F. App’x.
693, 695 (6th Cir. 2004)(Plaintiffs deprived district court of jurisdiction over their motion
for reconsideration by filing notice of appeal before district court had chance to make
decision on motion to reconsider). Petitioner’s notice of appeal likewise divests this
Court of jurisdiction to consider his motion to take judicial notice. See United States. v.
Ford, 215 F. App’x. 167, 168-69 (3d Cir. 2007).
B.
Moreover, even if the Court had jurisdiction over the motions, it would not be
inclined to grant them. Both motions essentially seek reconsideration of this Court’s
order denying Petitioner a certificate of appealability. A motion to alter or amend
judgment brought by a habeas petitioner pursuant to Rule 59 (e) may properly be
analyzed as a motion for reconsideration pursuant to Local Rule 7.1 of the Eastern
District of Michigan. See Hence v. Smith, 49 F. Supp. 2d 547, 550 (E.D. Mich. 1999).
E.D. Mich. LR 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 granted. 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 show that correcting the defect
will lead to a different disposition of the case. See e.g. Taylor v. DaimlerChrysler AG,
313 F. Supp. 2d 703, 706 (E.D. Mich. 2004); aff’d 124 F. App’x 661 (6th Cir. 2005).
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In his motion to take judicial notice and in his motion to alter or amend judgment,
Petitioner says that the Court erred in denying him a certificate of appealability because
Petitioner did not have access to various legal materials which he claims would have
assisted him in the preparation of his original motion for a certificate of appealability.
Petitioner has apparently now received his legal materials from prison staff, but has not
advanced any reasons in either of his motions why he is entitled to a certificate of
appealability from the denial of his motion for relief from judgment.
In short, there is no basis for reconsideration for the Court’s decision to deny Petitioner
a certificate of appealability.
III.
For the reasons stated above, Petitioner’s “Motion for Court to Take Judicial
Notice And Request for Opportunity to Be Heard” (Doc. 56) and “Motion to Alter or
Amend Order on Motion for Certificate of Appealability (Doc. 58) are DENIED.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: October 8, 2013

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, October 8, 2013, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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