Pouncy v. Palmer
Filing
340
ORDER on Pending Motions. Signed by District Judge Matthew F. Leitman. (HMon)
Case 2:13-cv-14695-MFL-LJM ECF No. 340 filed 07/23/20
PageID.13149
Page 1 of 4
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 ON PENDING MOTIONS
On July 22, 2020, the Court held an on-the-record status conference in this
action to discuss several filings by David Moffitt, one of the attorneys for Petitioner
Omar Rashad Pouncy.
With respect to the motion to permit Pouncy to appear via video during the
upcoming July 30, 2020, hearing (see Mot., ECF No. 332), for the reasons stated on
the record during the status conference, the motion is GRANTED IN PART AND
DENIED IN PART. Pouncy shall be allowed to view and listen to the hearing
contemptuously. The motion is DENIED in all other respects, including Pouncy’s
request to be able to communicate with his counsel during the hearing.
With respect to the motion for reconsideration of the Court’s 2015 decision
denying Pouncy’s motion for summary judgment on his public trial claim (see Mot.,
ECF No. 330), the motion is DENIED. For all of the reasons stated on the record
1
Case 2:13-cv-14695-MFL-LJM ECF No. 340 filed 07/23/20
PageID.13150
Page 2 of 4
during the status conference, the Court concludes that there was no good-faith basis
to file that motion. In the motion, Pouncy argues that the Court erred when it (1)
applied AEDPA deference to the 2008 Michigan Court of Appeals’ decision denying
his public trial claim and (2) failed to review the public trial claim de novo. (See id.,
PageID.12689-12690.)
Those contentions are directly contrary to Pouncy’s
previous arguments to this Court. Indeed, he specifically told the Court that it should
apply AEDPA deference to the 2008 Michigan Court of Appeals’ decision denying
his public trial claim. (See 6/17/2015 Hr’g Tr., ECF No. 57, PageID. 6307.1) And
he previously argued that his public trial claim was subject to review under
AEDPA’s strictures and standards. (See, e.g., Mot. for Summ. J., ECF No. 33,
PageID.5947-5948, in which Pouncy applied AEDPA’s standards to his public trial
1
At that hearing, the Court had the following colloquy with Pouncy’s counsel Mr.
Moffitt:
THE COURT: What the Michigan Court of Appeals said
on this issue is Pouncy raised in his supplemental or pro
se brief, they reviewed it. It lacks merit. So the first thing
is, you would agree with me that the Michigan Court of
Appeals addressed the merits of Mr. Pouncey's public
trial claim?
MR. MOFFITT: Absolutely, Your Honor.
THE COURT: So you'd agree with me that their denial of
that claim receives deference.
MR. MOFFITT: Yes, Your Honor.
2
Case 2:13-cv-14695-MFL-LJM ECF No. 340 filed 07/23/20
PageID.13151
Page 3 of 4
claim; and Mot. for Reconsideration, ECF No. 60, PageID.6432-6433, in which
Pouncy argued that, since his public trial claim was subject to AEDPA, the Court
could not consider decisions from the circuit courts of appeals). Those arguments
cannot be reconciled with his current argument that the claim is not subject to review
under AEDPA and that Court should have reviewed the claim de novo. More
importantly, Pouncy cannot show that the Court committed a “palpable” error when
it applied the AEDPA standard that he asked the Court to apply. E.D. Mich. Local
Rule 7.1(h)(3). The Court therefore DENIES the motion for reconsideration.
The two other recent filings by Moffitt – a motion to enforce judicial
admissions (see Mot., ECF No. 331) and a motion to preclude reliance on certain
documents (see Mot., ECF No. 339) – are likewise improper, and the Court therefore
TERMINATES those motions. For the reasons explained on the record, these
filings violate the Court’s prior order prohibiting duplicative filings by Pouncy’s
attorneys. (See Order, ECF No. 274.) These filings are in the nature of a reply to
Respondent’s most recent supplemental brief, and Aaron Katz, another of Pouncy’s
attorneys, has already filed a comprehensive reply to that brief. (See Resp., ECF No.
335.)
Finally, as further explained on the record, Pouncy’s 238-page pro per reply
brief (see Pro Per Reply, ECF No. 336) likewise violates the prior order of this Court
prohibiting Pouncy from filing his own pleadings and briefs because he is
3
Case 2:13-cv-14695-MFL-LJM ECF No. 340 filed 07/23/20
PageID.13152
Page 4 of 4
represented by counsel – exceptionally competent counsel. (See Order, ECF No.
274, PageID.11914.) As noted above, attorney Katz has filed a comprehensive reply
to Respondent’s final brief, and the Court shall look to Katz’s reply – and solely to
that reply – for Pouncy’s reply arguments.
Accordingly, for the reasons stated above, and the reasons stated on the record
during the status conference, the Court will exclude from consideration Pouncy’s
motions (ECF Nos. 330, 331, and 339) and his pro per reply brief (ECF No. 336).
Respondent need not file a response to any of those motions nor will the Court
require Respondent to address any of the arguments in the motions or in Pouncy’s
pro per reply.
IT IS SO ORDERED.
Dated: July 23, 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 July 23, 2020, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
(810) 341-9764
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?