Pouncy v. Palmer

Filing 311

ORDER Denying Petitioner's 302 Emergency Motion to Stay Remainder of Sentence. Signed by District Judge Matthew F. Leitman. (HMon)

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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 PETITIONER’S EMERGENCY MOTION
TO STAY REMAINDER OF SENTENCE (ECF No. 302)
Petitioner Omar Rashad Pouncy is currently serving a lengthy prison sentence
for several serious crimes, including multiple counts of carjacking and armed
robbery. He has a petition for a writ of habeas corpus pending in this Court (the
“Petition”). (See Pet., ECF No. 1.) In the Petition, Pouncy claims, among other
things, that he received ineffective assistance of counsel related to a possible plea
bargain and that he is entitled to relief under Lafler v. Cooper, 566 U.S. 156 (2012)
(the “Lafler Claim”).
During an on the record status conference with counsel on April 14, 2020, the
Court set a final briefing schedule with respect to all of the remaining claims in the
Petition, including the Lafler Claim. That schedule, which the Court memorialized
in a written order, calls for the completion of final briefing by June 15, 2020. (See
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Order, ECF No. 293.) During the status conference, Pouncy’s counsel agreed to the
Court’s proposed schedule, and the Court pledged to hold a hearing on the remaining
claims as soon as reasonably possible after the completion of final briefing.
Despite this agreed-upon plan, Pouncy has filed an “Emergency Motion to
Stay the Remainder of Sentence” (the “Stay Motion”) (See Stay Mot., ECF No. 302.)
In the Stay Motion, Pouncy argues that (1) he is entitled to immediate relief on his
Lafler Claim and (2) the Court should immediately release him from custody. (See
id.) For the reasons explained below, the Court DENIES the Stay Motion and will
address the Lafler Claim when it takes up the rest of the claims in the Petition.
First, Pouncy filed the Stay Motion in violation of an order of this Court. On
November 26, 2019, this Court entered an order in which it stated that it would “not
accept multiple filings from different counsel on the same issue/subject matter.”
(Order, ECF No. 274, PageID.11914.1) The Stay Motion is just such a filing: it
largely duplicates an earlier filing on Pouncy’s behalf by a different attorney. On
May 11, 2020, attorney Aaron Katz filed Pouncy’s final brief in support of the
Petition. (See ECF No. 300.) In that brief, Katz presented substantial argument
concerning the Lafler Claim and specifically requested, as relief for that claim, that

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The prohibition on such filings was needed to bring some order to these
proceedings. Pouncy has been represented by more than eleven different attorneys
in this action (see Docket), and, at times, the various attorneys have either taken
different positions on the same issue or have submitted two separate filings on the
same issue.
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the Court immediately order Pouncy’s release from custody. (See id., PageID.1230512314.) One of Pouncy’s other attorneys, David Moffitt, filed the Stay Motion on
May 14, 2020. (See Stay Mot., ECF No. 302.) The motion again argues the Lafler
Claim and seeks the same relief on that claim that Katz sought. (See id.) The motion
thus plainly violates this Court’s order against duplicative filings by different
attorneys, and it is properly denied on that basis alone.
Second, the filing of the motion was contrary to the agreement that the Court
reached with counsel just one month earlier. As noted above, on April 14, 2020, the
Court held an on the record status conference with counsel to discuss a plan for
moving forward and brining this action to a close. The Court suggested that the most
efficient way to proceed would be to have counsel for both parties submit a final
round of briefing that crisply and efficiently presented argument on the remaining
claims. On behalf of Pouncy, Katz agreed that the Court’s proposal was a good idea
and that it made sense to proceed as the Court suggested. Despite Katz’s agreement
with the Court’s proposed path forward, Moffitt filed the Stay Motion and thereby
effectively asked the Court to take the proceedings in a different direction. The Stay
Motion suggests that instead of addressing all of Pouncy’s claims in a single hearing
with a single comprehensive round of briefing (as Katz agreed), the Court should
adopt a piecemeal approach and separately take up the Lafler Claim. The Court
declines to deviate from the path forward to which Katz agreed. As explained below,
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that path makes the most sense, and Katz acted entirely reasonably when he agreed
to it.
Third, for docket efficiency reasons, the Court will adhere to the agreed-upon
path forward of reviewing all of Pouncy’s remaining claims at once in the context
of the final round of briefing and will not take time now to focus exclusively upon
the Lafler Claim. The most efficient path forward is for the Court to resolve all of
Pouncy’s claims at once. Addressing only the Lafler Claim in the context of the
Stay Motion would result in one of two inefficiencies. If the Court ruled in favor of
Pouncy on that claim now and granted the Stay Motion, that would create a real risk
of multiple appeals and further disjointed proceedings on remand. That is exactly
what happened earlier in this case when the Court granted relief on one of Pouncy’s
claims without reaching the remainder of the claims. (See Op. and Order Granting
Habeas Relief, ECF No. 74; Judgment in favor of Pouncy, ECF No. 75.) The Sixth
Circuit reversed that grant of relief, see Pouncy v. Palmer, 846 F.3d 144 (6th Cir.
2017), and that resulted in a substantial round of proceedings on remand and will
result in another appeal by whichever party loses now. The Court will avoid a repeat
of that inefficiency by ruling upon all of the claims at once. In contrast, if the Court
ruled against Pouncy on the Lafler Claim now and denied the Stay Motion, the Court
would then have to take up the remainder of the claims in the Petition at a later date.
That means that the Court would have to get up to speed on the facts and background
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of the case a second time, and that would create an inefficiency. For all of these
reasons, the most efficient path forward is to take up all of the claims at once in the
context of the final round of briefing.
The Court appreciates and respects Pouncy’s desire for a prompt resolution of
his claims. The Court has committed to working diligently to schedule and hold a
hearing on the remaining claims once final briefing is complete.2 Following the
hearing, the Court will work hard to issue its decision as promptly as reasonably
possible.
Finally, the Court must say a word about the length of proceedings in this
case. Pouncy repeatedly highlights that the case is six years-old. That is true. But
standing alone, that six-year figure may be misleading. The Petition has not been
sitting around in some dusty corner of the Court’s chambers without attention for six
years. On the contrary, several years ago, the Court granted habeas relief to Pouncy
and freed him on bond. Following that ruling, Respondent appealed to the Sixth

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If Pouncy pursues an appeal of this order and/or pursues an appeal of the Court’s
earlier order denying his motion for release pending appeal (see Order, ECF No.
293), the Court will make a modest extension to the briefing schedule. The Court
will do so in order to give Respondent’s counsel sufficient time to complete the final
briefing here. Without such an extension, Respondent’s counsel would face undue
pressure to submit his substantial final brief here while also preparing substantial
submissions to the Sixth Circuit. It is not reasonable to impose that pressure on
Respondent’s counsel under the current circumstances in which we are all forced to
work from home due to the COVID-19 pandemic without usual access to support
staff, files, and other necessary resources.
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Circuit (which, as noted above, reversed), and Pouncy sought further review in the
Supreme Court. Those appellate proceeding account for some portion of the six
years.

Moreover, a not-insubstantial portion of the six years was spent on

proceedings related to Pouncy’s claim of actual innocence. The Court held an
evidentiary hearing on that claim and then allowed time for a round of follow-up
briefing. With the actual innocence claim pending, Respondent discovered and
presented to the Court substantial evidence that Pouncy had conspired with a witness
to present false testimony in support of the claim. (See Mot. to Dismiss, ECF No.
238.) At that point, the Court had to pause the proceedings to determine, among
other things, whether Pouncy’s prior counsel could remain in the case (when he had
allegedly used them, without their knowledge, to present false testimony) and
whether Pouncy’s alleged misconduct warranted dismissal of the Petition. Pouncy,
alone, is responsible for these delays. And Pouncy has changed and/or added
lawyers multiple times, and those changes, too, have added to the delays in at least
some respects. For all of these reasons (and others), the age of this case does not
warrant immediate consideration of the Lafler Claim in the context of the Stay
Motion.
Accordingly, for all of the reasons stated above, Pouncy’s motion to stay his
sentence (ECF No. 302) is DENIED. The Court will consider the merits of the

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Lafler Claim when it considers the rest of Pouncy’s remaining claims in the context
of the final round of briefing.
IT IS SO ORDERED.

Dated: June 1, 2020

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 June 1, 2020, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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