Pouncy v. Palmer
Filing
95
ORDER Denying Petitioner's 81 Motion to Bar Re-Prosecution. 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 PETITIONER’S MOTION TO BAR
RE-PROSECUTION (ECF #81)
On January 11, 2016,1 this Court issued a conditional writ of habeas corpus
vacating Petitioner Omar Rashad Pouncy’s convictions for carjacking, armed
robbery, and felon in possession of a firearm (the “Amended Opinion and Order”).
(See ECF #76.) In the Amended Opinion and Order, the Court held that Petitioner
was entitled to habeas relief because the state appellate court’s decision affirming
Petitioner’s convictions involved an unreasonable application of Faretta v.
California, 422 U.S. 806 (1985). The Court directed the State of Michigan to retry Petitioner within ninety days or release him from custody.
1
(The Court
The Court initially granted Petitioner relief on January 8, 2016. (See ECF #74.)
It then issued an Amended Opinion and Order on January 11, 2016, that corrected
two non-substantive errors in the Court’s initial ruling. (See ECF #76.)
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subsequently stayed that portion of the Amended Opinion and Order requiring the
State to re-try Petitioner within ninety days. (ECF #93).)
Petitioner has now filed a Motion to Bar Re-Prosecution (the “Motion”) in
which he asks the Court to convert the conditional writ of habeas corpus into an
unconditional writ barring the State from re-prosecuting him. (ECF #81.) The
Court DENIES the Motion.
Petitioner first argues that the Court should issue an unconditional writ of
habeas corpus because any re-trial would be barred by the applicable statute of
limitations. The Court is not currently persuaded that the statute of limitations
poses such a bar. In any event, the operation of the statute of limitations is a matter
of state law that should be decided by the state courts.2 The Court declines to
convert the conditional writ to an unconditional one based upon Petitioner’s
limitations-based theory.
Petitioner next argues that the Court should bar re-prosecution because the
state prosecutor failed to comply with his obligation under Brady v. Maryland, 373
U.S. 83 (1963), to disclose supposedly-exculpatory telephone records. But the
Court has not yet ruled on Petitioner’s Brady claim and has not concluded that a
2
Petitioner should present his statute of limitations arguments to the state courts.
If those courts reject the arguments and he is subsequently convicted at a re-trial,
he may present his limitations arguments to a federal court on habeas review if he
has a good-faith basis on which to argue that (1) the rejection of his limitations
arguments somehow amounted to a violation of his rights under the Federal
constitution and (2) he otherwise meets the requirements for habeas relief.
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Brady violation occurred. Moreover, Petitioner can ask the state trial court to
compel production of the records prior to any re-trial if he does not already have
them. And if the records no longer exist and cannot now be produced, he can ask
the state trial court to dismiss based upon the alleged Brady violation. Petitioner
can likewise present to the state court (for consideration in the first instance) his
claim that a re-trial should be barred because Quillie B. Strong, a witness whose
testimony allegedly would have related to the phone records and built upon the
supposedly-exculpatory nature of the records, has passed away.
The Court
declines to convert the conditional writ to an unconditional one based upon
Petitioner’s Brady claim.
Finally, Petitioner argues that the Court should bar re-prosecution because
he is actually innocent. At this point and under the current procedural posture of
this case, the Court leaves to a state court jury the question of determining – after a
fair trial – whether the State is able to prove Petitioner’s guilt beyond a reasonable
doubt.
Accordingly, IT IS HEREBY ORDERED that Petitioner’s Motion to Bar
Re-Prosecution is DENIED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: March 7, 2016
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I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on March 7, 2016, by electronic means and/or ordinary
mail.
s/Holly A. Monda
Case Manager
(313) 234-5113
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