Pouncy v. Palmer

Filing 169

ORDER Denying 165 Motion for Entry of Final Judgment on Public Trial Claim. 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 DENYING MOTION FOR ENTRY OF FINAL
JUDGMENT ON PUBLIC TRIAL CLAIM (ECF #165)
On November 12, 2013, Petitioner Omar Rashad Pouncy filed a Petition for a
Writ of Habeas Corpus (the “Petition”). (See ECF #1.) The Petition seeks habeas
relief on many different grounds. This Court has already ruled on two of those
grounds.
In an Opinion and Order dated July 20, 2015, the Court denied Pouncy’s
motion for summary judgment on his claim that the state court violated his Sixth
Amendment right to a public trial. (See ECF #58.) In the same order, the Court
denied habeas relief on that claim. (Id.)
In a subsequent Opinion and Order dated January 8, 2016, this Court
conditionally granted a writ of habeas corpus on Pouncy’s waiver of counsel claim.
(See ECF #74.) Also on January 8, 2016, the Court entered judgment in Pouncy’s
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favor. (See ECF #75.) Respondent thereafter appealed to the United States Court of
Appeals for the Sixth Circuit, but Pouncy did not cross-appeal the denial of habeas
relief on his public trial claim. The Sixth Circuit later reversed this Court’s grant of
habeas relief.
After the Sixth Circuit’s ruling, Pouncy filed a Notice of Appeal from the
order denying his public trial claim. (See ECF #149.) Pouncy has now moved the
Court to enter final judgment on his public trial claim so that he may pursue his
appeal. The Court DENIES the motion.
Pouncy seeks entry of final judgment under Rule 54(b) of the Federal Rules
of Civil Procedure. The rule provides that:
When an action presents more than one claim for relief-whether as a claim, counterclaim, crossclaim, or thirdparty claim--or when multiple parties are involved, the
court may direct entry of a final judgment as to one or
more, but fewer than all, claims or parties only if the court
expressly determines that there is no just reason for delay.
Otherwise, any order or other decision, however
designated, that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties does not
end the action as to any of the claims or parties and may
be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights and
liabilities.
Fed. R. Civ. P. 54(b).
The Sixth Circuit has offered the following guidance concerning Rule 54(b):
Although Rule 54(b) relaxes the traditional finality
requirement for appellate review, it does not tolerate
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immediate appeal of every action taken by a district court.
The rule is specifically “designed to facilitate the entry of
judgment on one or more claims, or as to one or more
parties, in a multi-claim/multi-party action.” Solomon v.
Aetna Life Ins. Co., 782 F.2d 58, 60 (6th Cir.1986).
Rule 54(b) certification requires two independent
findings. First, the district court must expressly “direct the
entry of final judgment as to one or more but fewer than
all the claims or parties” in a case. Second, the district
court must “express[ly] determin[e] that there is no just
reason” to delay appellate review. Fed.R.Civ.P. 54(b) [ ];
Wright, Miller & Kane, Federal Practice and Procedure:
Civil 2d § 2655 (1983 & Supp.1993) [ ]. A district court
certifying an order under Rule 54(b) must clearly explain
why it has concluded that immediate review of the
challenged ruling is desirable. Solomon, 782 F.2d at 61–
62.
Gen. Acquisition, Inc. v. GenCorp, Inc., 23 F.3d 1022, 1026 (6th Cir. 1994).
Interlocutory appeals under Rule 54(b) are limited to “‘infrequent harsh case[s].’”
Id. at 1027 (quoting Rudd Construction Equip. Co., Inc. v. Home Insurance Co., 711
F.2d 54, 56 (6th Cir. 1983)).
Pouncy has not persuaded the Court that a final judgment should enter on his
public trial claim. Entering such a judgment and permitting an immediate appeal on
that claim would create a substantial risk of piecemeal litigation and inefficient use
of federal judicial resources. While Pouncy’s public trial claim is a serious one that
deserves further judicial review, the Court does not believe that there is a high
likelihood that Pouncy will prevail on the claim. Thus, permitting an immediate
appeal of that claim creates a substantial risk of piecemeal litigation. The Court
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agrees with Respondent that the most sensible way to proceed in this action (once
the Supreme Court decides whether to grant Pouncy’s pending Petition for a Writ of
Certiorari on his waiver of counsel claim) is for this Court to address all of Pouncy’s
remaining claims and then to have a single panel of the Sixth Circuit review all of
those claims at once.
Notably, Pouncy had the option to seek appellate review of his public trial
claim more than one year ago but did not do so. As Pouncy has acknowledged, he
could have appealed the order denying relief on that claim when Respondent
appealed from the judgment granting habeas relief. (See ECF #149, Notice of
Appeal at Pg. ID 8040, n.1.1) Yet, he chose not to appeal. Simply put, contrary to
the suggestion in Pouncy’s reply brief (see ECF #168 at Pg. ID 8463), he did have a
chance to appeal the denial of his public trial claim without awaiting entry of final
judgment. Under these circumstances, the Court sees no substantial unfairness to
Pouncy in requiring him now to await a final judgment on all of his claims before
presenting his public trial claim to the Sixth Circuit.

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See also Seaman v. Washington, 506 F. App'x 349 (6th Cir. 2012) (explaining that
a habeas petitioner who prevailed on one claim had filed a cross-appeal from a
district court ruling denying relief on another claim); House v. Bell, 276 F. App'x
437 (6th Cir. 2008) (same); Henderson v. Collins, 262 F.3d 615 (6th Cir. 2001)
(same).

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Next, the Court rejects Pouncy’s argument that he should be permitted to
appeal the Court’s public trial ruling now because he is actually innocent. (See ECF
#168 at Pg. ID 8462.) Pouncy’s claim of actual innocence has been the subject of
lengthy briefing by both parties (see, e.g., ECF ## 158, 164), and Pouncy has an
upcoming opportunity to file one additional brief on the issue. The Court cannot
conclude, at this point, that Pouncy is actually innocent.
Finally, Pouncy argues that he should be permitted to appeal the Court’s
public trial ruling now because Respondent urged the Supreme Court to deny
certiorari on his waiver of counsel claim, in part, on the ground that Pouncy’s public
trial appeal was actually pending before the Sixth Circuit. The Court agrees that
there is at least some unfairness in denying Pouncy an opportunity to appeal the
public trial ruling now even though Respondent used the alleged pendency of that
appeal against Pouncy in the Supreme Court. However, Respondent did not focus
extensively on the allegedly-pending public trial appeal in her opposition to
Pouncy’s request Supreme Court review. Moreover, Respondent’s argument that
the Supreme Court should deny review for procedural reasons was also supported
by Respondent’s accurate statement that Pouncy has many claims still pending in
this Court. For these reasons (and because, as described above, Pouncy already
passed on an opportunity to appeal the public trial ruling), any unfairness to Pouncy

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would not be so significant as to justify an immediate appeal of the Court’s public
trial ruling.
For the reasons explained above, the Court DENIES Pouncy’s motion for
entry of final judgment on his public trial claim.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 3, 2018

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on January 3, 2018, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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