Pouncy v. Palmer

Filing 38

ORDER for Supplemental Briefing by Both Parties as to 33 MOTION for Summary Judgment: (Supplemental Briefs due by 4/15/2015.) Signed by District Judge Matthew F. Leitman. (Monda, H)

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

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

v.
CARMEN D. PALMER,
Respondent.
_________________________________/
ORDER FOR SUPPLEMENTAL BRIEFING BY BOTH PARTIES
Petitioner Omar Pouncy (“Petitioner”), through counsel, has filed a motion
for summary judgment that is limited to the claim in his Petition that the state trial
court violated his Sixth Amendment right to a public trial when it excluded the
public from voir dire and certain other pre-trial proceedings.

Respondent

addressed this claim in her response to the Petition. (See the “Answer,” ECF #7.)
During a telephone status conference with the Court on March 16, 2015, counsel
for Respondent indicated that Respondent did not plan to file any additional
briefing on this issue unless requested by the Court to do so. The Court has
reviewed the motion and supporting brief and requests that Respondent file a brief
addressing the following issues:

1. Petitioner argues that his failure to object to the closing of the courtroom
does not preclude this Court from granting habeas relief because the
Michigan Court of Appeals reviewed the merits of his claim and did not
enforce a procedural bar to review of the claim. Respondent should answer
the following questions:
a. Is Petitioner correct that the state court did not enforce a procedural
bar to review of his courtroom closure claim and that the court,
instead, reviewed the merits of the claim? Respondent should
specifically address the state court's statement that it "carefully
examined" the claim and "conclude[d]" that it did not "have merit."
See People v. Pouncy, 2008 WL 9869818 at *27 (Mich. App. 2008).
b. If the state court did not enforce a procedural bar and did review the
courtroom closure claim on the merits, how, if at all, does Petitioner's
failure to object affect or limit this Court's authority to review, and/or
grant relief upon, the claim?
2. Does Respondent contend that either Teague v. Lane, 489 U.S. 288 (1989)
or 28 U.S.C. § 2254(d)(1) precludes this Court from considering and
applying the decision of the United States Supreme Court in Presley v.
Georgia, 558 U.S. 209 (2010), a decision issued after Petitioner's conviction
became final? If Respondent answers "yes," then Respondent shall address
the impact of the Supreme Court's statement that its prior decisions in PressEnterprise Co. v. Superior Court of Cal., Riverside Cty, 464 U.S. 501 (1984)
and Waller v. Georgia, 467 U.S. 39 (1984), so "well settled" the issue of
whether "the Sixth Amendment right [to an open courtroom] extends to jury
voir dire" that the Court deemed itself able to "proceed by summary
disposition." Presley, 558 U.S. at 213.
In addition, Petitioner is directed to file a supplemental brief addressing
Respondent's argument (and the authority cited therein) in both Respondent's
Answer and in Respondent's supplemental brief (see ECF #30) that Petitioner
abandoned all of his claims, including the courtroom closure claim by failing to
timely file a legal brief explaining the basis of, and support for, the claims. If

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Petitioner asserts that some of the delay between the filing of the Petition and the
supporting brief was due to technical difficulties experience by Petitioner's
counsel, Petitioner shall support that assertion with a sworn affidavit from counsel
explaining in detail (a) the nature of the difficulties and (b) how those difficulties
led to a multi-month delay in the filing of the brief. The affidavit shall account for
the entire period of delay between the filing of the Petition and the supporting
brief. The affidavit shall also specifically address whether any issue regarding the
payment of attorney’s fees and/or delay of such payment accounted for any portion
of the multi-month delay.
The parties shall file the supplemental briefs described above by no later
than April 15, 2015. Each party’s brief shall not exceed 20 pages.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: March 17, 2015
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on March 17, 2015, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
[phone]

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