Pouncy v. Palmer
ORDER Denying Petitioner's 119 Motion to Reinstate Bond. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
OMAR RASHAD POUNCY,
Case No. 13-cv-14695
Hon. Matthew F. Leitman
CARMEN D. PALMER,
ORDER DENYING PETITIONER’S
MOTION TO REINSTATE BOND (ECF #119)
On January 8, 2016, the Court conditionally granted a writ of habeas corpus
to Petitioner Omar Rashad Pouncy (“Pouncy”). (See ECF #74.) In a subsequent
ruling, the Court granted Pouncy’s motion for bond pending Respondent’s appeal.
(See ECF #93). On the day that the Court signed Pouncy’s bond papers, the Court
advised Pouncy on the record in no uncertain terms that it expected him to literally
and strictly comply with all conditions of release, and Pouncy told the Court that
he understood those conditions:
THE COURT: Mr. Pouncy, one of the reasons I wanted
to do this in person with you is I want to very carefully
review with you the strict conditions that I placed on this
bond, and I want to make certain that you understand the
conditions. If you have any questions, I want you to ask
me. And the reason I’m doing that is I know that you are
a careful reader of judicial decisions, I said several times
in my decision granting bond that when I balanced all of
the factors I thought it was appropriate to grant bond
subject to a very strict set of conditions, and I want to
make sure you understand the conditions, and I want to
make sure that you understand that in going along with
the conditions is zero tolerance with respect to violations
of the conditions, and so I want to walk through them one
at a time starting with my order and then starting – and
then going to the additional conditions of release form
where we have checked the boxes. I would ask you to
listen carefully, and I want you to ask me if you have any
questions. I want to underscore the importance of that
because what I don't want to end up with is a situation
where there is an issue with respect to compliance and
you come back to me and you say I didn't understand.
THE DEFENDANT: Yes, Your Honor.
(3/28/16 Hearing Tr., ECF #108 at 4-5, Pg. ID 7574-75.) One of those conditions
was that Pouncy not commit any violations of any criminal laws. (See Order
Setting Conditions of Release, ECF #106 at 1, Pg. ID 7565.)
Shortly after Pouncy’s release on bond, he engaged in troubling behavior
that led Respondent to file an emergency motion to revoke his bond. (See ECF
#109). Specifically, Respondent alleged that Pouncy (1) attempted to gain entry to
the chambers of the state court trial judge who presided over his trial and (2)
entered that judge’s courtroom while court was in session and looked at the judge
in a manner that upset the judge and caused him fear. (See id.) The Court held a
hearing on Respondent’s motion on May 5, 2016.
At the hearing, Pouncy admitted that he tried to gain entry to the state trial
judge’s chambers and that he sat in the judge’s courtroom.
The Court was
extremely troubled by Pouncy’s conduct and poor judgment. The Court expressed
its displeasure to Pouncy on the record and reminded Pouncy that the Court was
serious when it previously advised him of its expectations for his conduct while on
And in case I wasn’t obvious enough, what I was trying
to convey was, don’t end up back here. Do not end up
back here. Do not put yourself in a position where your
freedom is at risk.
(5/5/16 Hearing Tr., ECF #115 at 5, Pg. ID 7641.)
Despite this Court’s concern with Pouncy’s conduct, the Court did not
revoke his bond. Instead, by written Order dated May 6, 2016, the Court imposed
new restrictions and advised Pouncy that his “failure to comply with … any of the
previous conditions of release which may remain in effect) may result in the Court
revoking [his] release on bond.” (ECF #114 at 2, Pg. ID 7635.)
In August 2016, the Court again advised Pouncy that strict compliance with
all bond conditions was required and that his non-compliance could result in the
revocation of his bond. The Court did so in a written Order amending Pouncy’s
bond conditions to permit him to travel to the oral argument of his appeal in
Cincinnati, Ohio. (See ECF #116.)
The Order allowing Pouncy to travel to
Cincinnati provided, in relevant part: “Petitioner is advised that the Court will
strictly enforce all bond conditions and that any violation of any condition may
result in revocation of Petitioner’s bond.” (Id. at 3, Pg. ID 7697.)
Despite this Court’s repeated admonitions, Pouncy did not comply with his
bond conditions. In September of 2016, Pouncy was charged in state court with
two felony offenses: one count of being a felon in possession of a firearm and one
count of being a felon in possession of ammunition. (See ECF #119 at 2, Pg. ID
7703.) On December 15, 2016, Pouncy pleaded no contest to both charges. (See
id. at 3, Pg. ID 7704.) Thus, Pouncy has chosen not to dispute allegations that he
committed two felony offenses while free on bond. The Court is persuaded that
Pouncy has materially violated his bond conditions (or, at a minimum, that it is
reasonable to deem Pouncy in material violation in light of his no contest plea). In
the Court’s opinion, Pouncy’s violations make him unworthy of release on bond.
Quite simply, the Court does not trust Pouncy to comply with the strict conditions
that the Court would require.
There has been one additional change in circumstance since the Court first
granted bond: the parties have presented oral argument to the United States Court
of Appeals for the Sixth Circuit.
This Court listened to a recording of that
argument. While the comments of appellate judges during oral argument do not
provide certainty as to the result they will reach, the comments of at least a
majority of the appellate panel seemed to suggest that the panel will reverse this
Court’s grant of habeas relief. This Court remains confident that the grant of relief
was correct, but, at the same time, the Court is a realist. The Court must conclude
that Respondent’s chance of prevailing on appeal – i.e., of the Sixth Circuit
reversing this Court’s ruling – is better now than it was when the Court first
For all of these reasons, the Court concludes that the presumption of release
in Rule 23(c) of the Federal Rules of Appellate Procedure has been overcome and
that Pouncy should not be released on bond pending a final decision on his appeal.
Accordingly, Pouncy’s Motion to Reinstate Bond (ECF #119) is DENIED.
IT IS SO ORDERED.
Dated: December 21, 2016
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on December 21, 2016, by electronic means and/or
s/Holly A. Monda
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