Smith v. Bergh

Filing 35

ORDER DENYING 33 MOTION for Evidentiary Hearing and 32 MOTION for Reconsideration filed by Edwin Smith. Signed by District Judge Terrence G. Berg. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EDWIN ANTHONY SMITH,

2:16-cv-10098

Petitioner,
HON. TERRENCE G. BERG
v.
DAVID BERGH,
Respondent.

ORDER DENYING MOTION
FOR RECONSIDERATION
AND MOTION FOR
EVIDENTIARY HEARING

Petitioner Edwin A. Smith (“Petitioner”) is currently a state
prisoner at Kinross Correctional Facility in Kincheloe, Michigan. This
Court previously denied Petitioner’s pro se habeas petition challenging
his conviction for first-degree criminal sexual conduct in violation of
Mich. Comp. Law § 750.520(1)(a). ECF No. 28 (Jan. 31, 2019 Order).
Petitioner now asks the Court to reconsider its previous order denying
habeas relief and again requests an evidentiary hearing. ECF Nos. 32,
33.
Petitioner urges that, because he has produced evidence rebutting
the Michigan Court of Appeals’ findings, this Court should not apply the
highly deferential standard for evaluating state-court rulings mandated
by the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and

Supreme Court precedent. See ECF No. 32 PageID.1886–87 (Pet.’s Br.).
Cf. 28 U.S.C. § 2254(d); Renico v. Lett, 559 U.S. 766, 773 (2010). He also
seeks an evidentiary hearing to examine both the results of DNA
analysis, which he considers exculpatory, and certain alleged misconduct
by the prosecutor.
DISCUSSION
The factual and procedural background of this matter are set forth
in detail in this Court’s previous Order. See ECF No. 28 PageID.1846–
51. On January 31, 2019, the Court issued an Order denying Petitioner’s
writ of habeas corpus, motion to reconsider, and motion to submit his
habeas petition for the Court’s consideration. See ECF No. 28. In
response, Petitioner filed a motion for extension of time to file a motion
for reconsideration, which this Court granted. ECF No. 31. Petitioner
then filed his motions for reconsideration and for an evidentiary hearing
on March 31, 2019. Those motions are now before the Court.
Motions for reconsideration are governed by Local Rule 7.1(h)(3).
That rule provides that 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 reasonable implication.” Id. To warrant
reconsideration, “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

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the defect will result in a different disposition of the case.” Id.
“A palpable defect is a defect which is obvious, clear, unmistakable,
manifest, or plain.” Am. Pie Pizz, Inc. v. Holton Holdings, Inc., No. 2:10cv-13106, 2011 WL 652834, at *1 (E.D. Mich. Feb. 14, 2011) (quoting
Ososki v. St. Paul Surplus Lines Ins. Co., 162 F. Supp. 2d 714, 718 (E.D.
Mich. 2001)). “[A]bsent a significant error that changes the outcome of a
ruling on a motion, the Court will not provide a party with an opportunity
to relitigate issues already decided.” Maiberger v. City of Livonia, 724 F.
Supp. 2d 759, 780 (E.D. Mich. 2010).
There are three generally recognized grounds upon which a party
may properly seek reconsideration of a court’s previous ruling: (1) a clear
error of law; (2) newly discovered evidence that was not previously
available to the parties; or (3) an intervening change in the controlling
law. Eggelston v. Nexteer Auto. Corp., 2018 WL 2117754, at *2 (E.D. Mich.
May 8, 2018). “A motion for reconsideration should not be used liberally
to get a second bite at the apple, but should be used sparingly to correct
actual defects in the court’s opinion.” Estate of Fahner ex rel. Fahner v.
Cnty. of Wayne, No. 2:08-cv-14344, 2012 WL 2087070, at *1 (E.D. Mich.
June 8, 2012).
A. Alleged misrepresentation by Michigan Court of Appeals
Petitioner first asks this Court to reconsider its previous Order on
the basis that the Court should not have deferred to factual findings the
Michigan Court of Appeals made based on the state trial record. ECF No.
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32 PageID.1880. Petitioner avers he has presented clear and convincing
evidence that rebuts factual findings by the Michigan Court of Appeals.
ECF No. 32 PageID.1880–81. More specifically, Petitioner purports that
the Michigan Court of Appeals misstated portions of the trial record
relevant to whether the orange sex toy at issue in the underlying case
had already been, or would be, sent to the state crime lab for testing
before his criminal trial. ECF No. 32 PageID.1880–81.
As discussed in this Court’s January 31, 2019 Order, a district court
may not grant a habeas petition with respect to any claim adjudicated on
the merits in state court unless that adjudication runs contrary to, or
involves an unreasonable application of, United States Supreme Court
precedent, or incorporates an “unreasonable determination of the facts in
light of the evidence presented” in the state-court proceedings. 28 U.S.C.
§ 2254(d). See Moore v. Mitchell, 708 F.3d 760, 774 (6th Cir. 2013). The
district court is also required to presume the state court’s factual findings
are correct unless rebutted by “clear and convincing evidence.” Robinson
v. Howes, 663 F.3d 819, 825 (6th Cir. 2011) (citing 28 U.S.C. § 2254(e)(1)).
“This presumption of correctness also applies to the factual findings
made by a state appellate court based on the state trial record.” Mason v.
Mitchell, 320 F.3d 604, 614 (6th Cir. 2003) (citing Sumner v. Mata, 499
U.S. 539, 546–47 (1981)).
Here, Petitioner relies on an alleged discrepancy between the trial
record and the Michigan Court of Appeals’ discussion of that record to
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argue that the appellate court’s factual findings are not entitled to
deference—namely, the state appellate court’s finding that DNA testing
on the orange sex toy was not completed until after Petitioner’s criminal
trial. As described by Petitioner, during an October 4, 2011 calendar
conference in his case the prosecutor indeed indicated that a search
warrant for two sex toys believed to be involved in the underlying crime
had been executed and that “at least one of those has been sent to the
Michigan State Police lab for DNA testing.” ECF No. 32 PageID.1903.
The prosecutor acknowledged she had “not received those results” as of
the date of the conference but agreed to “pass them on to defense counsel”
when they became available. Id. As explained by the Michigan Court of
Appeals, however, this planned DNA testing did not actually take place
before trial. People v. Smith, No. 312021, 2014 WL 4263093, at *1 (Mich.
Ct. App. Aug. 28, 2014) (per curiam) (unpublished). At trial, “[d]efense
counsel’s cross-examination of the officer-in-charge left no doubt that
DNA analysis of the object was never obtained.” Id. And defense counsel
in fact used the absence of DNA analysis to call the investigating officer’s
judgment into question. Id. at *4. A September 18, 2013 letter from the
State Appellate Defender Office addressed to Petitioner more than a year
after his trial and conviction further explained that the orange sex toy
had in fact never been tested because “the DPD [Detroit Police
Department] does not have the complainant’s DNA.” ECF No. 1-4
PageID.233. This evidence belies Petitioner’s claim that potentially
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exculpatory results of DNA analysis were withheld from the defense at
trial. The Court finds Petitioner has not presented clear and convincing
evidence to rebut the Michigan Court of Appeals’ factual finding that
DNA testing was not completed until after Petitioner’s trial. Moreover,
the results eventually obtained from DNA testing were inconclusive and
consistent with a mixture of DNA of at least two individuals including
one male contributor. ECF No. 1 PageID.235–36. They are therefore not
exculpatory.
Based on the foregoing, as previously determined by this Court, the
Michigan Court of Appeals’ decision was not contrary to or rooted in an
unreasonable application of United States Supreme Court precedent, or
“based on an unreasonable determination of the facts in light of the
evidence presented.” 28 U.S.C. § 2254(d). See ECF No. 28 at PageID.15.
Because Petitioner has failed to establish an “obvious, clear,
unmistakable, manifest, or plain” palpable defect in this Court’s prior
decision, his motion for reconsideration will be denied. Am. Pie Pizz, Inc.,
2011 WL 652834 at *1.
B. Perjured testimony by Officer Beckem
Petitioner appears also to seek reconsideration of this Court’s
previous finding that he is not entitled to habeas relief on his claim that
the prosecutor permitted a government witness, Officer Beckem, to
perjure himself during his trial testimony. ECF No. 32 PageID.1885,
1891. Petitioner previously raised this claim in his habeas petition but
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asks the Court to again direct its attention to Officer Beckem’s testimony
regarding the victim’s alleged use of the orange sex toy. Id. This request
is not accompanied by any previously undiscoverable evidence or other
information that warrants reconsideration of this claimed basis for
habeas relief and therefore “merely present[s] the same issues ruled upon
by the court, either expressly, or by reasonable implication.” L.R.
7.1(h)(3). As previously determined by the Court, Petitioner has not
presented evidence that Officer Beckem’s testimony regarding DNA
testing of the orange sex toy was plainly factually false, that it was
material, or that the prosecution knew it was false. See ECF No. 28
PageID.28. See Rosencrantz v. Lafler, 568 F.3d 577, 583–84 (6th Cir.
2009). Accordingly, the Court will deny Petitioner’s motion to reconsider
its denial of habeas relief on this basis and reiterate its consensus with
the Michigan Court of Appeals that “[o]n the record, there is no basis for
defendant’s claim that he was convicted through the use, knowing or
otherwise, of perjured testimony.” Smith, 2014 WL 4263093 at *4.
C. Motion for evidentiary hearing
Petitioner has failed to present facts or evidence that entitle him to
an evidentiary hearing. Under 28 U.SC. § 2254(e)(2), “the court shall not
hold an evidentiary hearing” on a claim for habeas relief unless the
petitioner relies on: (1) “a new rule of constitutional law, made retroactive
to cases on collateral review by the Supreme Court, that was previously
unavailable”; or (2) “a factual predicate that could not have been
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previously discovered through the exercise of due diligence”; and “the
facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable
factfinder would have found the applicant guilty of the underlying
offense.”
As found by the Michigan Court of Appeals, there were no DNA
results at the time of trial for the prosecutor to turn over to defense
counsel. Smith, 2014 WL 4263093 at *3–4. Further, the eventual results
of DNA testing on the orange sex toy are already in Petitioner’s
possession. See ECF No. 1 PageID.235–36 (results of DNA analysis
attached to Petitioner’s brief). Petitioner has not cited any new rule of
constitutional law that could be applied to him retroactively, or any new
evidence that could not have previously been discovered through the
exercise of due diligence. Moreover, it does it appear, based on the
evidentiary record examined by the trial court, the Michigan Court of
Appeals, and now by this Court, that the facts underlying Petitioner’s
claims, even if proven to be true, would be sufficient to establish
constitutional error. Petitioner’s motion for an evidentiary hearing will
therefore be denied.
CONCLUSION
Based on the foregoing, it is ORDERED that Petitioner’s motion
for reconsideration (ECF No. 32) is DENIED. His motion for an
evidentiary hearing (ECF No. 33) is also DENIED. The Court will deny
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a certificate of appealability because reasonable jurists could not disagree
with the Court’s resolution of Petitioner’s constitutional claims, nor
conclude that the issues presented deserve encouragement to proceed
further. See Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). If the
Petitioner decides to appeal this Court’s decision regardless, he may
proceed in forma pauperis because an appeal could be taken in good faith.
Petitioner is instructed not to file additional motions for
reconsideration without leave of this Court.
SO ORDERED.
Dated: July 17, 2019

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served on July 17, 2019.
s/A. Chubb
Case Manager

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