Albers v. Klee

Filing 39

ORDER denying 38 Motion for Reconsideration. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID ALBERS,
Petitioner,

Case No. 2:12-cv-10142
Hon. Arthur J. Tarnow

v.
PAUL KLEE,
Respondent.
___________________________________/
ORDER DENYING MOTION FOR RECONSIDERATION [Dkt. 38]
Petitioner, David Albers, a state prisoner, filed this case under 28 U.S.C. § 2254,
challenging his May 27, 2009, Macomb Circuit Court conviction for solicitation to murder.
On June 7, 2016, the Court dismissed the petition on the grounds that the petition was filed
after expiration of the one-year statute of limitations. Presently before the Court is
Petitioner’s motion for reconsideration.
Local Rule 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. Ford Motor Co. v.
Greatdomains.com, Inc., 177 F. Supp. 2d 628, 632 (E.D. Mich. 2001). The movant must not
only demonstrate a palpable defect by which the court and the parties have been misled but
also show that a different disposition of the case must result from a correction thereof. 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).

In the present case, the arguments raised by Petitioner in his motion for
reconsideration were already rejected by the Court in its opinion dismissing the petition
either explicitly or by implication. Petitioner asserts that his petition is not subject to the
statute of limitations because he is actually innocent. As noted in the Court’s opinion
dismissing the petition, a credible claim of actual innocence may equitably toll the one-year
statute of limitations. McQuiggin v. Perkins, U.S. , 133 S. Ct. 1924, 1928, 185 L. Ed. 2d 1019
(2013); Souter v. Jones, 395 F.3d 577, 588-90 (6th Cir. 2005). But to establish actual
innocence, a habeas petitioner “must demonstrate that, in light of all the evidence, it is more
likely than not that no reasonable juror would have convicted him.” Bousley v. United States,
523 U.S. 614, 623 (1998) (quoting Schlup v. Delo, 513 U.S. 298, 327-28 (1995)); see also
House v. Bell, 547 U.S. 518, 537-39 (2006). A valid claim of actual innocence requires a
petitioner “to support his allegations of constitutional error with new reliable evidence —
whether it be exculpatory scientific evidence, trustworthy eyewitness account, or critical
physical evidence — that was not presented at trial.” Schlup, 513 U.S. at 324. Furthermore,
actual innocence means “factual innocence, not mere legal insufficiency.” Bousley, 523 U.S.
at 623.
Petitioner’s claim of actual innocence does not differ from what he presented to the
state courts in his entrapment hearing. Petitioner claims that Detective Brian Shock–the
undercover officer who posed as a hit-man–entrapped him and threatened to kill him. He also
asserts that Det. Shock’s supervisor, Sgt. Jerome Urbaniak, committed perjury at the
entrapment hearing. Petitioner’s motion and attached exhibits, however, proffer no new
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evidence in support of this claim.
The state trial court made the following factual findings after holding an evidentiary
hearing on Petitioner’s claim:
The Roseville police department was proveded with information that the
Defendant was interested in finding someone to kill his ex-wife. They
conducted an investigation as the Court believes would be their obligation
upon hearing of that information. The meeting that occurred on May 28th as
set forth in the transcript, the Court believes clearly indicates the Defendant’s
intention to hire the undercover officer Detective Shock to kill his wife.
The Court does not believe that Detective Shock either by way of the
transcript that the Court read or upon hearing Detective Shock’s testimony
engaged in any impermissible conduct that would induce an otherwise law
abiding citizen to commit this crime.
Detecitve Shock simply initiated the phone call and then reacted to
defendant’s clear intention to find someone to murder his wife.
In addition, the second leg that might result in an entrapment defense
the police engaged in conduct so reprehensible that it cannot be tolerated by
the Court.
This court finds a complete absence of any reprehensible conduct. In
fact, it would be the Court’s opinion that the Roseville police department acted
admirably and efficiently in investigating a possible crime and arguably
ultimately stopped that crime from being committed.
Dkt. 30-10, at 11-12.
These findings of the state court are entitled to a presumption of correctness, and
Petitioner has failed to proffer clear and convincing evidence that they are incorrect. 28
U.S.C. § 2254(e)(1). Indeed, the Court review of the entrapment hearing transcripts supports
that state court’s conclusion that Petitioner was not entrapped. Because Petitioner is merely
presenting issues which were already ruled upon by the court, either expressly or by
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reasonable implication, the motion for reconsideration is DENIED. See Hence v. Smith, 49
F. Supp. 2d 547, 553 (E.D. Mich. 1999).
SO ORDERED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: January 27, 2017
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on January 27, 2017, by electronic and/or ordinary mail.
S/C. Pickles
Judicial Assistant

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