Varner v. Gidley

Filing 38

ORDER denying 37 Motion for Reconsideration and Denying a Certificate of Appealability. Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KEVIN SCOTT VARNER,
Petitioner,

Case No. 16-14388

v.
HON. AVERN COHN
LORI GIDLEY,
Respondent.
_____________________________/
ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION (Doc. 37)
AND DENYING A CERTIFICATE OF APPEALABILITY
I. Introduction
Kevin Scott Varner (Petitioner) filed a pro se petition for writ of habeas corpus under
28 U.S.C. § 2254, challenging his conviction for unlawful possession of controlled
substances with intent to deliver and resisting and obstructing a police officer. The Court
denied the petition and declined to issue a certificate of appealability. (Doc. 26). Petitioner
then filed a “Motion for Amended or Additional Findings and Motion to Alter or Amend
Judgment” which the Court denied. (Doc. 29). Petitioner filed a Notice of Appeal. (Doc.
30). Petitioner then filed a “Motion for relief from Order and Judgment” under Rule 60(b).
(Doc. 35). The Court denied the motion and a certificate of appealability (Doc. 36).
Now before the Court is Petitioner’s motion for reconsideration of the denial of his
motion for relief from judgment (Doc. 37). For the reasons that follow, the motion will be
denied.
II. Discussion
As an initial matter, the Court lacks jurisdiction to consider the motion for

reconsideration because Petitioner has filed a notice of appeal. A notice of appeal
generally “confers jurisdiction on the court of appeals and divests the district court of
control over those aspects of the case involved in the appeal.” Marrese v. American
Academy of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985)(citing Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58 (1982)( per curiam )); See also Workman v.
Tate, 958 F. 2d 164, 167 (6th Cir. 1992). Because Petitioner filed a notice of appeal, the
Court lacks jurisdiction to consider his motion for reconsideration. See Raum v. Norwood,
93 F. App’x. 693, 695 (6th Cir. 2004).
Moreover, assuming the Court has jurisdiction, the motion must be denied. Under
E.D. Mich. 7.1 (h), a party may file a motion for reconsideration. A motion for
reconsideration may be granted if the movant demonstrates a palpable defect by which the
court and the parties have been misled and shows that correcting the defect will lead to a
different disposition of the case. Id.
In his Rule 60(b) motion, Petitioner argued that the Court erred in concluding that
his Fourth Amendment claims were non-cognizable on habeas review, because he did not
raise his Fourth Amendment claims merely to seek the suppression of the cocaine seized
in this case, but also to challenge his conviction for resisting and obstructing a police
officer. The Court denied the motion because Petitioner did not make this argument in his
original petition, brief in support of the petition, or in his reply brief and was impermissibly
attempting to bring in new facts or arguments in his Rule 60(b) motion.
In his motion for reconsideration, Petitioner says that the Court failed to review the
amendment to the brief in support of his petition in which he did argue, albeit briefly, that
the illegality of the officer’s search and arrest constituted a defense to the resisting and

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opposing a police officer charge. (Doc. 12, Pg ID 205). Even if the Court erred in failing to
review the amendment to the brief when adjudicating the Rule 60(b) motion, Petitioner is
still not entitled to relief from judgment. Habeas review of a petitioner’s arrest or search by
state police is barred where the state has provided a full and fair opportunity to litigate an
illegal arrest or a search and seizure claim. Stone v. Powell, 428 U.S. 465, 494-95 (1976);
Machacek v. Hofbauer, 213 F.3d 947, 952 (6th Cir. 2000). Petitioner has not cited any
federal cases which suggest that a Fourth Amendment claim becomes cognizable on
habeas review if the challenge to the arrest or search provides an affirmative defense to
the charged offense, nor has the Court been able to find any cases which limit Stone v.
Powell only to those cases in which a habeas petitioner is seeking the exclusion of
evidence based on an allegedly illegal search and seizure. Petitioner is therefore not
entitled to relief from judgment.
Finally, a certificate of appealability is required to appeal the denial of a motion for
reconsideration in a habeas case. See e.g. Amr v. U.S., 280 F. App’x. 480, 486 (6th Cir.
2008). The Court declines to issue a certificate of appealability because jurists of reason
would not find the resolution of the motion for reconsideration to be debatable.
III. Conclusion
For the reasons stated above, Petitioner’s motion for reconsideration is DENIED. A
certificate of appealability is DENIED.
SO ORDERED.
S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 4/23/2018
Detroit, Michigan
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