Elizondo v. Bauman

Filing 20

ORDER GRANTING PETITIONERS APPLICATION TO PROCEED WITHOUT PREPAYMENT OF FEES AND COSTS (Doc. 18), AND DENYING PETITIONERS MOTION FOR RECONSIDERATION (Doc. 19). Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARIO ELIZONDO,
Petitioner,
Case No. 12-15443
v.
HON. AVERN COHN
CATHERINE S. BAUMAN,
Respondent.
_____________________________/
ORDER
GRANTING PETITIONER’S APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF FEES AND COSTS (Doc. 18),
AND
DENYING PETITIONER’S MOTION FOR RECONSIDERATION (Doc. 19)
I. Introduction
This is a closed habeas corpus case under 28 U.S.C. § 2254. Petitioner Mario
Elizondo (“Petitioner”) was convicted of first-degree and second-degree criminal sexual
conduct and is serving concurrent prison terms of twenty-five to fifty years and one to
fifteen years, respectively. In his habeas corpus petition filed through counsel,
Petitioner alleged that other “bad acts” evidence was erroneously admitted at his trial
without notice, that the prosecutor’s remarks deprived him of a fair trial, and that the trial
judge pierced the veil of judicial impartiality by assuming the role of a prosecutor. On
July 13, 2015, the Court denied the habeas petition, but granted in part a certificate of
appealability on Petitioner’s judicial-bias claim. (Doc. 13).
Petitioner has appealed the Court’s dispositive opinion and judgment. (Doc. 16).
Now before this Court are: Petitioner’s application to proceed without prepaying fees or

costs and Petitioner’s motion for reconsideration of the order denying his petition and
granting in part a certificate of appealability.1 Each motion is addressed in turn below.
II. Application to Proceed Without Prepayment of Fees or Costs
In his application to proceed without prepaying fees or costs, Petitioner says that
he has no funds to pay for his appeal.2 Furthermore, the custodian of Petitioner’s
institutional trust fund account has certified that Petitioner had a current spendable
account balance of $376.37 in his account as of August 27, 2015. Petitioner is indigent
and is unable to pay the appellate filing fee of $505.00.
Accordingly, Petitioner’s application to proceed without prepayment fees or costs
is GRANTED.
III. Motion for Reconsideration
Petitioner seeks to have the Court reconsider its decision denying the writ of
habeas corpus. The basis for Petitioner’s motion is a recent court decision in which the
Michigan Supreme Court set forth the following standard “for determining when a trial
judge’s conduct in front of a jury has deprived a party of a fair and impartial trial, and
whether that standard was met”:
A trial judge’s conduct deprives a party of a fair trial if the conduct pierces
the veil of judicial impartiality. A judge’s conduct pierces this veil and
violates the constitutional guarantee of a fair trial when, considering the
totality of the circumstances, it is reasonably likely that the judge’s conduct
improperly influenced the jury by creating the appearance of advocacy or
partiality against a party. In evaluating the totality of the circumstances,
the reviewing court should inquire into a variety of factors including, but
not limited to, the nature of the trial judge’s conduct, the tone and
1

Also before the Court is Petitioner’s motion to designate his habeas attorney as
appointed counsel on appeal or to allow defense counsel to withdraw from the case
(Doc. 15). This motion will be the subject of a separate order.
2
Although the title of the document is “Application to Proceed in District Court without
Prepaying Fees or Costs,” Petitioner is seeking leave to proceed without prepayment of
the appellate fees and costs and the Court construes the filing as a motion.
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demeanor of the judge, the scope of the judicial conduct in the context of
the length and complexity of the trial and issues therein, the extent to
which the judge’s conduct was directed at one side more than the other,
and the presence of any curative instructions, either at the time of an
inappropriate occurrence or at the end of trial. When the issue is
preserved and a reviewing court determines that the trial judge’s conduct
pierced the veil of judicial impartiality, the court may not apply harmlesserror review. Rather, the judgment must be reversed and the case
remanded for a new trial.
People v. Stevens, 498 Mich. 162, __; __ N.W.2d __, 2015 WL 4486762, at *1 (July 23,
2015).
The Local Rules require motions for reconsideration to be filed within fourteen
days of the entry of the judgment or order. LR 7.1(h)(1) (July 1, 2013). Furthermore,
the court generally
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).
On July 13, 2015, the Court entered its dispositive Memorandum and Opinion,
and on September 2, 2015, Petitioner filed his motion for reconsideration. Because the
motion was filed more than ten days after the Court issued its Memorandum and Order,
the motion is untimely.
Moreover, Petitioner is raising the same judicial-bias claim that he raised in his
habeas corpus petition. This Court is not bound by the Michigan Supreme Court’s
decision in Stevens, and Petitioner has not demonstrated a palpable defect in the
Court’s prior opinion in this case.

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Accordingly, Petitioner’s motion for reconsideration is DENIED.
SO ORDERED.

Dated: October 1, 2015

s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

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