Pouncy v. Palmer

Filing 426

ORDER Setting Briefing Schedule. 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.
MATT MACAULEY,
Respondent.
__________________________________________________________________/
ORDER SETTING BRIEFING SCHEDULE
On June 28, 2021, this Court issued a 140-page Opinion and Order resolving
the final remaining claims in Petitioner Omar Rashad Pouncy’s Petition for a Writ
of Habeas Corpus (the “Opinion and Order”). (See Op. and Order, ECF No. 401.)
In the Opinion and Order, the Court granted a conditional writ of habeas corpus on
Pouncy’s claim that he was denied the effective assistance of counsel in connection
with the plea-bargaining process, and the Court denied relief on the remainder of
Pouncy’s claims.
Pouncy has now filed a Motion for Reconsideration (see Mot., ECF No. 404),
a Supplemental Motion for Reconsideration (see Supp. Mot., ECF No. 406), and a
Second Supplemental Motion for Reconsideration (see Sec. Supp. Mot., ECF No.
407). He has also filed a Motion to Stay Remainder of Sentence (see Mot., ECF No.
413) and a Motion for Clarification (see Mot., ECF No. 414).
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In addition,

Respondent has indicated that he intends to move for a stay pending appeal of the
portion of the Court’s order granting relief to Pouncy.
On September 21, 2022, the Court held an on-the-record video status
conference with counsel to discuss a path forward for addressing Pouncy’s pending
motions and Respondent’s to-be-filed motion for a stay. For the reasons explained
on the record (and as agreed-to by counsel on the record) during the video status
conference, IT IS HEREBY ORDERED as follows:
1.

Respondent shall file his motion for a stay pending appeal by not
later than October 13, 2021, and Pouncy shall respond to the
motion by not later than October 27, 2021. The portion of the
Opinion and Order granting habeas relief to Pouncy is STAYED
until the Court issues a written ruling on Respondent’s motion for
stay pending appeal. The stay granted herein is temporary in
nature and is being entered for the administrative reasons
explained on the record on September 21, 2021.

2.

By not later than October 27, 2021, Respondent shall file
responses to all of the pending motions by Pouncy identified
above. With respect to the three motions for reconsideration,
Respondent need not respond to every argument presented by
Pouncy in those motions. Instead, with respect to those three
motions, Respondent shall respond to the following arguments by
Pouncy:

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 Pouncy’s argument that in Glass v. Pineda, 635 F. App’x 207
(6th Cir. 2015), the Sixth Circuit held that it was clearly
established that a trial court must advise a defendant of the
range of allowable punishments before accepting a waiver of
the right to counsel. (See Supp. Mot., ECF No. 406,
PageID.14512-14514.) Respondent should address, among
other things, whether, in light of Glass, this Court must
reconsider its denial of Pouncy’s claim that his waiver of the
right to counsel was not valid.
 Pouncy’s argument that Respondent is bound by counsel’s
statement on the record that the decision in Iowa v. Tovar, 541
U.S. 77 (2004), clearly establishes that a defendant must be
advised of the range of allowable punishments when waiving
the right to counsel. (See Supp. Mot., ECF No. 406,
PageID.14516-14522.) Respondent should address whether
he is bound by counsel’s statement and whether this Court
was free to conduct its own analysis of what Tovar clearly
establishes notwithstanding counsel’s statement. In addition,
Respondent shall address the impact, if any, of Respondent’s
written contention – made after the oral representation cited
by Pouncy – that “no Supreme Court precedent requires the
trial court to inform a defendant of ‘the range of allowable
punishments’ in the self-representation setting.” (Respondent
Br., ECF No. 239, PageID.11370.)
 Pouncy’s argument that the remedy ordered by the Court
cannot be reconciled with the Sixth Circuit’s decision in Byrd
v. Skipper, 940 F.3d 248 (6th Cir. 2019). (See Supp. Mot.,
ECF No. 406, PageID.14522-14527.)
 Pouncy’s argument that he has shown that the prosecution
knew about Wayne Grimes’ arrest during his trial. (See Supp.
Mot., ECF No. 406, PageID.14536-14539.) Respondent
should address whether there is any evidence that the LIEN
“run” identified by Pouncy indicated that Grimes had been
arrested. In addition, Respondent should address Pouncy’s
contention that the prosecution must have known about
Grimes’ arrest because the trial judge ordered the prosecution
to provide Pouncy with Grimes’ criminal record as reflected
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in the LEIN. Finally, Respondent should address Pouncy’s
contention that the prosecution must have known about (or,
as a matter of law, is deemed to have known about) Grimes’
arrest by virtue of the Genesee County Prosecutor’s Office’s
participation in Grimes’ earlier prosecution arising out of
Grimes’ criminal conduct in Clio, Michigan.
 Pouncy’s argument that the Court erred when it held that
Pouncy was required to exhaust his Brady claim related to
Willie Joyce. (See Sec. Supp. Mot., ECF No. 407,
PageID.14602.)
Respondent may include his responses to the issues identified above in a
single, consolidated response that will serve as his response to all of Pouncy’s
motions for reconsideration. Respondent shall separately respond to Pouncy’s other
two pending motions.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: September 22, 2021
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on September 22, 2021, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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