Pouncy v. Palmer

Filing 147

ORDER (1) Denying Petitioner's 139 Rule 60(b) Motion and (2) Terminating Petitioner's 146 Motion for Immediate Consideration as Moot. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
OMAR RASHAD POUNCY,
Petitioner,

Case No. 13-cv-14695
Hon. Matthew F. Leitman

v.
CARMEN D. PALMER,
Respondent.
_________________________________/
ORDER (1) DENYING PETITIONER’S RULE 60(b) MOTION
(ECF #139) AND (2) TERMINATING PETITIONER’S MOTION FOR
IMMEDIATE CONSIDERATION (ECF #146) AS MOOT
On January 8, 2016, the Court conditionally granted a writ of habeas corpus
to Petitioner Omar Rashad Pouncy on the ground that he did not voluntarily waive
his right to counsel in his state court criminal trial. (See ECF #74.) The United States
Court of Appeals for the Sixth Circuit subsequently reversed this Court’s ruling, see
Pouncy v. Palmer, 846 F.3d 144 (6th Cir. 2017), and Pouncy has filed a Petition for
a Writ of Certiorari in the United States Supreme Court. That petition remains
pending.
On July 24, 2017, Pouncy filed a motion for relief from judgment in this Court
under Rule 60(b) of the Federal Rules of Civil Procedure. (See ECF #139.) In the
motion, Pouncy asks this Court “to set aside the judgment of the Sixth Circuit” (id.
at Pg. ID 7957) on the ground that the assigned Assistant Attorney General
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intentionally committed “fraud on the court.” (Id. at Pg. ID 7941.) The motion is
devoid of merit because it rests upon a characterization of the Assistant Attorney
General’s arguments that is plainly wrong. It is therefore DENIED.1
I
In the motion, Pouncy argues that the Assistant Attorney General committed
“fraud” when he (the Assistant Attorney General) took a position before the Sixth
Circuit that was “wholly irreconcilable with [the] position [the Assistant Attorney
General took] in front of this [C]ourt.” (Id. at Pg. ID 7942.) But the Assistant
Attorney General’s positions were not inconsistent at all – and were not even
remotely “wholly irreconcilable.”
Before this Court, the Assistant Attorney General argued that when the Court
conducts an analysis of alleged ineffective assistance of counsel under Strickland v.
Washington, 466 U.S. 668 (1984), the Court should not presume prejudice, as it may
do in other contexts. (See 11/12/15 Hearing Tr. at 65-67, ECF #73 at Pg. ID 676163.) The Assistant Attorney General argued that Strickland is “its own standard”
and that it would thus be improper to “incorporate other standards from other types
of error into Strickland.” (Id. at 67, Pg. ID 6763; emphasis added.)

1

On September 7, 2017, Pouncy filed a motion in which he requested immediate
consideration of his Rule 60(b) motion. (See ECF #146.) Because the Court
considers and denies the Rule 60(b) motion through this Order, it will
TERMINATE the emergency-consideration motion as moot.
2

Before the Sixth Circuit, the Assistant Attorney General did not address how
a court should conduct a Strickland analysis. Instead, he offered arguments with
respect to how that court should review a claim challenging a waiver of counsel
under Faretta v. California, 422 U.S. 806 (1975). The Assistant Attorney General
arguably suggested that the Sixth Circuit could properly incorporate a Stricklandtype analysis into the analysis of a Faretta claim. The Assistant Attorney General
wrote:
In fact, in deciding whether or not a defendant was placed
in the position of choosing between unprepared counsel
and no counsel, many courts assess counsel’s readiness for
trial using the familiar standard for ineffective assistance
of counsel found in Strickland….
(Brief for Appellant, Sixth Cir. Case No. 16-1137 at 44.)
The Assistant Attorney General’s positions before this Court and before the
Sixth Circuit were not inconsistent. He asked this Court not to import a presumption
of prejudice into a Strickland analysis, and he suggested to the Sixth Circuit that it
could perhaps export the Strickland framework into a different context.

The

Assistant Attorney General’s position in this Court – that a court should not add
anything into a Strickland ineffective assistance analysis – says nothing about
whether a court may use the Strickland framework in some other context.
Pouncy has failed to show any inconsistency in the Assistant Attorney
General’s two positions. Instead, in his motion, he attempts to manufacture tension
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between the two positions by mischaracterizing the Assistant Attorney General’s
position before this Court. Pouncy says that in this Court the Assistant Attorney
General “correctly acknowledg[ed] that it is illegal to incorporate Strickland with
other holdings from the Supreme Court….” (ECF #139 at Pg. ID 7941; emphasis
added.) But the Assistant Attorney General said nothing to this Court about whether
Strickland should be “incorporated with” other decisions. Rather, he contended only
that other standards from other decisions should not be incorporated “into”
Strickland. That is a far cry from saying that the Strickland standard should not be
used “with” other holdings of the Supreme Court in other contexts.
In his reply brief (see ECF #145), Pouncy offer two more arguments in support
of his claim that the Assistant Attorney General took irreconcilable positions in this
Court and the Sixth Circuit, but neither is persuasive. Pouncy first highlights the
Assistant Attorney General’s statement to this Court that “Strickland is its own
standard.” Pouncy cites this statement as irrefutable evidence that the Assistant
Attorney General took the position in this Court that the Strickland standard cannot
and should not be applied or considered outside of the ineffective assistance of
counsel context.
Pouncy’s myopic focus on the five words quoted above is misplaced. Indeed,
Pouncy ignores entirely the context in which the Assistant Attorney General said
these words – a discussion of whether to import a presumption of prejudice into a
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Strickland analysis.

Pouncy also ignores that immediately after the Assistant

Attorney General said the five words highlighted above, he (the Assistant Attorney
General) explained that it would be improper to “incorporate other standards from
other types of error into Strickland.” (11/12/15 Hearing Tr. at 67, ECF #73 at Pg. ID
6763; emphasis added.) These surrounding words underscore that the Assistant
Attorney General was addressing only the importation of a different prejudice test
into a Strickland analysis and was not arguing against exporting the Strickland
prejudice test into other contexts.
Pouncy next argues that the Assistant Attorney General’s reference to Premo
v. Moore, 562 U.S. 115 (2011), during his argument before this Court is conclusive
proof that he (the Assistant Attorney General) was arguing that the Strickland
prejudice standard cannot be considered or applied in any other context. According
to Pouncy, “any reading of Premo shows that Premo sets a bright-line rule that
transposition [of a legal standard from one Supreme Court decision to another
context] of any kind ‘is improper even on its own terms.’” (ECF #145 at Pg. ID 8010;
emphasis added; quoting Premo, 562 U.S. at 128.) In Pouncy’s words, Premo
broadly “holds that no one Supreme Court case can be transposed into another case.”
(Id.) Pouncy insists that by relying on Premo, the Assistant Attorney General was
unambiguously telling this Court that the Strickland prejudice standard can never be
applied outside of the ineffective assistance of counsel context.
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Pouncy seriously mis-reads Premo. Premo did not hold that transposition “of
any kind” is improper under any circumstances. Instead, the Supreme Court held
that, in light of 28 U.S.C. § 2254(d), a federal court may not grant habeas relief under
a “novel rule” that results from the transposition of a legal standard from one context
to another. Premo, 562 U.S. at 127. Stated another way, the Supreme Court in Premo
did not object to the general notion of transposing legal standards. Rather, the
Supreme Court held that habeas relief is not available where it depends upon a
transposition of legal standards that the Supreme Court, itself, has not previously
authorized.
The Supreme Court also disapproved of the particular transposition
undertaken by the Ninth Circuit in Premo – the transposition of the prejudice
standard from Arizona v. Fulminante, 499 U.S. 279 (1991), into the Strickland
context. Premo, 562 U.S. at 128. But the Supreme Court’s criticism of that one
transposition – on the ground that the standards were not compatible – did not even
remotely suggest that other transpositions of legal standards are never allowed.
Simply put, Premo did not create a “bright-line” rule prohibiting any and all
transpositions of legal standards from one context to another. Nor did Premo
specifically hold that federal courts could never export the Strickland standards and
apply them outside of the ineffective assistance context. Indeed, the issue in Premo
was whether the Ninth Circuit properly imported another standard “into the
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Strickland performance inquiry.” Premo, 562 U.S. at 128 (emphasis added). Thus,
Pouncy errs when he argues that because the Assistant Attorney General cited Premo
to this Court, he (the Assistant Attorney General) necessarily contended that the
Strickland prejudice standard may not be considered outside of the ineffective
assistance of counsel context.
Because the essential premise of Pouncy’s motion – that the Assistant
Attorney General took irreconcilable positions in this Court and the Sixth Circuit –
is false, Pouncy is not entitled to relief.
II
The Sixth Circuit has emphasized that “there are good reasons not to call an
opponent’s argument ‘ridiculous.’” Bennett v. State Farm Mutual Automobile
Insurance Company, 731 F.3d 584, 584 (6th Cir. 2013). Those reasons “include
civility; the near certainty that the overstatement will only push the reader away
(especially when, as here, the hyperbole begins on page one of the brief) … [and]
that the argument [the party] derides as ridiculous [may] instead [be] correct.” Id. at
585.
There are equally “good reasons” not to casually throw around repeated
allegations of intentional fraud by an officer of the Court, as Pouncy has done here.
Those reasons include civility, the near certainty that the accusation will push the
reader away, that there mere hurling of such an accusation could cause serious
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reputational harm, and that the allegation could be wrong. All of those reasons apply
to Pouncy’s baseless accusation of fraud by the Assistant Attorney General. The
Court expresses its strong disapproval of the meritless allegation of intentional fraud
against the Assistant Attorney General.2 While there is certainly a place in federal
court litigation for serious claims of fraud on the court, Pouncy did not present such
a claim.
This Court has not agreed with all that the Assistant Attorney General has
argued in this case.

In fact, over the Assistant Attorney General’s vigorous

objections, this Court granted habeas relief, released Pouncy on bond pending
appeal, and declined to revoke that bond even after Pouncy exhibited extremely poor
judgment while free.

But the Court has never had any reason to question the

Assistant Attorney General’s candor. On the contrary, the Court believes that the
Assistant Attorney General has, at all times in this case, conducted himself in full
accord with the high ethical standards applicable to government counsel.

2

On April 19, 2017, this Court entered a written order that appointed attorney John
Bursch to represent Pouncy in connection with Pouncy’s effort to seek review of this
case in the United States Supreme Court. (See ECF #136.) It is the Court’s
understanding that Mr. Bursch played no role in the preparation and/or filing of the
motion now before the Court. The remarks above are not directed at Mr. Bursch.
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III
For the reasons explained above, (1) Pouncy’s motion for relief from
judgment (ECF #139) is DENIED and (2) Pouncy’s motion for immediate
consideration (ECF #145) is TERMINATED AS MOOT.
IT IS SO ORDERED.

Dated: September 11, 2017

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 September 11, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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