Love v. Woods

Filing 18

OPINION AND ORDER denying 13 Motion for Certificate of Appealability. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MENDO LOVE,
Petitioner,

Case No. 2:15-cv-14168
Paul D. Borman
United States District Judge

v.
PAUL KLEE,
Respondent.
_________________________________/

OPINION AND ORDER DENYING
PETITIONER’S MOTION FOR CERTIFICATE OF APPEALABILITY
Petitioner Mendo Love, a state prisoner currently incarcerated at the
Lakeland Correctional Facility in Coldwater, Michigan, filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254, challenging his convictions for first-degree
premeditated murder and possession of a firearm during the commission of a
felony. He was represented by an attorney when he filed his petition, but is now
proceeding without the assistance of counsel. The Court dismissed the petition on
September 7, 2017 and declined to issue a certificate of appealability (“COA”).
(ECF No. 7.) Now before the Court is Petitioner’s pro se motion for COA, in
which he seeks reconsideration of the Court’s prior decision. For the reasons that
follow, Petitioner’s motion is DENIED.
I.

Background

Petitioner’s convictions arise from a December 3, 2010 shooting on
Winthrop Street in Detroit, Michigan, which resulted in the death of Raymond
Singleton, II. In September of 2012, a jury found Petitioner guilty of first-degree
murder and possession of a firearm during the commission of a felony. Thereafter,
he was sentenced to life without parole for the murder conviction, plus two years
consecutive for the felony-firearm conviction.
In his petition for writ of habeas corpus, Petitioner asserted that his trial
counsel was ineffective in two ways: 1) by failing to request a jury instruction
related to tracking-dog evidence; and 2) by acquiescing to the trial court informing
the jury that trial transcripts were not available. This Court denied the petition and
declined to issue a COA, concluding that the Michigan Court of Appeals’
dispensation of both of these issues was reasonable. In the instant motion,
Petitioner asks the Court to reconsider whether a COA should issue on three bases:
1) the state court’s decision was unreasonable; 2) he has a newly discovered Brady
claim; and 3) his appeal is not frivolous.
II.

Standard
U.S. Dist. Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion for

reconsideration. A motion for reconsideration should be granted if the movant
demonstrates a palpable defect by which the court and the parties have been misled
and that a different disposition of the case must result from a correction thereof.
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Ward v. Wolfenbarger, 340 F. Supp. 2d 773, 774 (E.D. Mich. 2004)(citing L.R.
7.1(g)(3)). A motion for reconsideration which merely presents “the same issues
ruled upon by the Court, either expressly or by reasonable implication,” shall be
denied. Id.

III.

Discussion
A.

Michigan Court of Appeals’ Decision

Petitioner asserts that the Michigan Court of Appeals did not correctly apply
the standard under Strickland v. Washington, 466 U.S. 668 (1984). As such, he
advances the same ineffective assistance of counsel argument that he made in his
initial petition for writ of habeas corpus, which was considered and addressed by
this Court when it denied habeas relief and declined to grant a COA. Petitioner’s
request for reconsideration will therefore be denied, because he is merely
presenting an issue which was already ruled upon by this Court, expressly, when
the Court denied his application for writ of habeas corpus. See Hence v. Smith, 49
F. Supp. 2d 547, 553 (E.D. Mich. 1999). Petitioner raises no new arguments and
does not identify a palpable defect by which the court and parties have been
misled. His motion for reconsideration will not be granted on this basis.
B.

Newly Discovered Evidence
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Petitioner next contends that this Court should issue a COA because he is
seeking a remand to the state court on the basis of newly discovered evidence. The
Court addressed this issue on October 18, 2017, when it denied Petitioner’s motion
to hold the case in abeyance pending exhaustion of state court remedies. (ECF No.
10.) Specifically, the Court informed Petitioner that, “[a]fter exhausting his state
court remedies, Love may seek leave to file a successive habeas corpus petition in
the Sixth Circuit Court of Appeals regarding his newly discovered evidence,
pursuant to 28 U.S.C. § 2244(b).” Id. at 1-2. Petitioner’s request for
reconsideration is therefore denied on this basis, because he is presenting an issue
expressly ruled upon by this Court.
C.

Non-Frivolous Appeal

In his final argument, Petitioner asserts that he is entitled to a COA because
his appeal is non-frivolous. However, Petitioner misstates the standard for
granting a COA and conflates it with the standard for allowing an individual to
proceed in forma pauperis (“IFP”) on appeal. As the Court stated in its December
15, 2017 opinion and order granting IFP status:
The Court has already denied a certificate of appealability in this
matter, finding that reasonable jurists would not debate the conclusion
that the petition failed to state a claim upon which habeas corpus relief
should be granted. However, the threshold for granting leave to
proceed IFP on appeal is lower, and merely requires a showing that
the appeal is not frivolous. See Foster v. Ludwick, 208 F. Supp. 2d
750, 764 (E.D. Mich. 2002). It does not require a showing of
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probable success on the merits. Id. at 765. Here, reasonable jurists
would not debate this Court’s resolution of Petitioner’s claims, but the
issues are not frivolous and an appeal could be taken in good faith.
Petitioner may proceed IFP on appeal.
(ECF No. 12 at 3-4.) As such, this Court has already concluded that Petitioner’s
claims are not frivolous. This conclusion, however, does not have any impact on
whether a COA should issue. Again, Petitioner raises no new arguments and
identifies no palpable defect by which the Court and parties have been misled. His
motion for COA is therefore denied.
IV.

Conclusion
Based on the foregoing, IT IS ORDERED that Petitioner’s motion for COA

is DENIED. (ECF No. 13.)
SO ORDERED.

s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: January 29, 2018
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon
each attorney or party of record herein by electronic means or first class U.S. mail
on January 29, 2018.
s/D. Tofil
Deborah Tofil, Case Manager
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