Sutton v. Romanowski

Filing 39

ORDER Denying 37 Application filed by Joseph Sutton Signed by District Judge Sean F. Cox. (JMcC)

Case 2:13-cv-14789-SFC-LJM ECF No. 39, PageID.2550 Filed 08/05/21 Page 1 of 5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH A. SUTTON,
Petitioner,
CASE NO. 2:13-cv-14789
HONORABLE SEAN F. COX

v.
THOMAS MACKIE,
Respondent.
______________________________/

ORDER DENYING PETITIONER’S APPLICATION
FOR A CERTIFICATE OF APPEALABILITY (ECF No. 37)
Petitioner Joseph A. Sutton, a state prisoner in the custody of the Michigan
Department of Corrections, has appealed the Court’s denial of his amended habeas
corpus petition.

The amended habeas petition challenged Petitioner’s state

convictions for first-degree murder and two firearm offenses. Petitioner claimed
that: (1) the prosecution suppressed evidence of police misconduct to conceal the
fact that death threats were used to force a prosecution witness to testify falsely
against Petitioner, and the prosecutor lied to the trial court to validate the witness’s
testimony; (2) defense counsel provided ineffective assistance by failing to notify
the trial court that death threats were used to force the prosecution witness to testify
against Petitioner; (3) trial counsel was ineffective for failing to call expert witnesses

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in Petitioner’s behalf; and (4) appellate counsel omitted compelling issues during
the direct appeal. (ECF No. 22, PageID.1969.)
Now before this Court is Petitioner’s application for a certificate of
appealability. Petitioner alleges in his application that the Court’s dispositive
opinion was based on a misperception of the evidence and information regarding his
Brady1 claim and that the Court was biased and disregarded evidence and
information. (ECF No. 37, PageID.2528.)
I. Discussion
A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
To satisfy this standard, a prisoner must demonstrate that reasonable jurists could
either disagree with the district court’s resolution of his constitutional claims or
conclude the issues presented are adequate to deserve encouragement to proceed
further.

Miller-El

v.

Cockrell,

537

U.S.

322,

327

(2003).

The Court declined to issue a certificate of appealability in its dispositive
opinion and order. The Court, therefore, will treat Petitioner’s application as a
motion for reconsideration. This District’s Local Rules provide that
[g]enerally, and without restricting the Court’s discretion, the Court
will not grant motions for rehearing or reconsideration that merely
present the same issues ruled upon by the Court, either expressly or by

1

See Brady v. Maryland, 373 U.S. 83 (1963).
2

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reasonable implication. The movant must not only demonstrate a
palpable defect by which the Court and the parties and other persons
entitled to be heard on the motion have been misled but also show that
correcting the defect will result in a different disposition of the case.
E.D. Mich. L.R. 7.1(h)(3). “A ‘palpable defect’ is a defect which is obvious, clear,
unmistakable, manifest, or plain.” Michigan Dep’t of Envtl. Quality v. City of Flint,
296 F. Supp. 3d 842, 847 (E.D. Mich. 2017).
Here, Petitioner argues that the prosecution failed to disclose information
about how it discovered prosecution witness Andre Christian and about threats
allegedly made to Christian to induce his testimony against Petitioner. Petitioner
also argues that his trial counsel was ineffective for failure to (i) notify the trial court
about the threats allegedly made to Christian and (ii) produce an expert witness to
testify about prosecution witness Charmane Murphy’s mental health records.
Finally, Petitioner contends that appellate counsel was ineffective for not raising
Petitioner’s claims about Christian and Murphy on appeal.

(ECF No. 37,

PageID.2529-2532.) 2

2

In his supporting brief, Petitioner also argues that the prosecutor bolstered
Murphy’s testimony and also admitted improper “bad acts” evidence and that
defense counsel’s failure to object to the bolstering and “bad acts” evidence deprived
him of effective assistance of counsel. See Brief in Support of Application for
Certificate of Appealability, ECF No. 37, PageID.2544-2547. Petitioner did not
raise these arguments as grounds for relief in his habeas petition, and his application
for a certificate of appealability is not the proper place to raise new claims.

To the extent that Petitioner is raising new grounds for habeas corpus relief,
his new claims are the equivalent of a second or successive habeas petition. The
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The Court addressed Petitioner’s claims about his trial and appellate attorneys
and the prosecutor’s conduct in its dispositive opinion.

The Court rejected

Petitioner’s Brady claim because the record did not support Petitioner’s claim that
the prosecutor suppressed evidence or lied to the trial court. The Court also
thoroughly analyzed Petitioner’s claim about trial counsel and found no merit in the
claims.
Finally, the Court rejected Petitioner’s claim about appellate counsel because
the underlying claims lacked merit or because the Petitioner was not prejudiced by
appellate counsel’s failure to raise the claims. The Court also pointed out that the
state court’s conclusion -- that appellate counsel was not ineffective – was
objectively reasonable.
II. Conclusion and Order
Petitioner has not shown that the Court made a palpable error when it rejected
his habeas claims or that correcting the alleged defects would result in a different
disposition of his case. Accordingly, the Court declines to reconsider its dispositive

Court has no jurisdiction to consider Petitioner’s new claims unless he first obtains
permission from the Sixth Circuit Court of Appeals for authorization to file a second
or successive petition. 28 U.S.C. § 2244(b)(3)(A); Franklin v. Jenkins, 839 F.3d
465, 475 (6th Cir. 2016) (citing 28 U.S.C. § 2244(b)(3) and Burton v. Stewart, 549
U.S. 147, 149 (2007)).
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opinion and its decision not to issue a certificate of appealability. Petitioner’s
application for a certificate of appealability is denied.
IT IS SO ORDERED.
Dated: August 5, 2021

s/Sean F. Cox
Sean F. Cox
U. S. District Judge

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