Greene v. MacLaren

Filing 21

OPINION AND ORDER denying 18 Motion to Extend Time Under Rule 4, OVERRULING Petitioner's Objections and denying 20 Motion for Certificate of Appealability. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_________________________________________________________________
LOREN DEPREE GREENE,
Petitioner,

Civil No. 17-11078

v.
DUNCAN MACLAREN,
Respondent,
/
OPINION AND ORDER DENYING MOTION FOR AN EXTENSION OF TIME,
OVERRULING PETITIONER’S OBJECTIONS, AND DENYING MOTION FOR
CERTIFICATE OF APPEALABILITY
On November 21, 2017, the court summarily dismissed Petitioner’s application
for a writ of habeas corpus because it is barred by the one year statute of limitations
contained in 28 U.S.C. § 2244(d). The court declined to issue a certificate of
appealability or leave to appeal in forma pauperis. Petitioner has filed several motions,
and after reviewing each one, the court will deny them all.
Nearly one month after the court’s entry of judgment, Petitioner filed a motion for
an extension of time to file a reply brief to Respondent’s Motion to Dismiss. (Dkt. # 18.)
While Rule 5(e) of the Rules Governing § 2254 Cases, see Pub. L. No. 94-426, permits
a habeas petitioner to “submit a reply to the respondent's answer or other pleading
within a time fixed by the judge,” Petitioner’s request for a reply comes far too late and
he has failed to provide an explanation for his tardiness or good reason to excuse it.
Moreover, Petitioner’s motion is moot because the claims that would be the subject of
Petitioner’s reply have been adjudicated in a final judgment. See Gaines-Hanna v.

Farmington Pub. Sch., No. 04-74910, 2006 WL 3343856, at *2 (E.D. Mich. Nov. 17,
2006); Kulling v. Grinders for Indus., Inc., 115 F. Supp. 2d 828, 853, n.25 (E.D. Mich.
2000). The court will deny the motion.
Petitioner has filed what he characterizes as objections to the court’s summary
dismissal order. (Dkt. # 19.) Petitioner has also filed a motion for a certificate of
appealability, despite the court’s prior order declining to issue one. (Dkt. # 20.) The
court will construe both motions as motions for reconsideration since they ask this court
to review the correctness of its prior opinion and order.
Eastern District of Michigan Local Rule 7.1 provides that, “without restricting the
court’s discretion,” a motion for reconsideration will not be granted unless the movant
can (1) “demonstrate a palpable defect by which the court and the parties have been
misled,” and (2) show that “correcting the defect will result in a different disposition of
the case.” E.D. Mich. LR 7.1(h)(3). “A ‘palpable defect’ is ‘a defect that is obvious,
clear, unmistakable, manifest, or plain.’” Buchanan v. Metz, 6 F. Supp. 3d 730, 752
(E.D. Mich. 2014) (quoting United States v. Lockett, 328 F.Supp.2d 682, 684
(E.D.Mich.2004). A motion for reconsideration which presents the same issues already
ruled upon by the court, either expressly or by reasonable implication, will not be
granted. United States v. Willis, No. 13-20303-06, 2018 WL 564236, at *2 (E.D. Mich.
Jan. 26, 2018) (stating that “a motion for reconsideration is not a second bite at the
apple, nor an opportunity to present evidence or arguments that could have been
presented in the party’s original briefing”) (quoting Collins v. Nat'l Gen. Ins. Co., 834
F.Supp.2d 632, 641 (E.D. Mich. 2011).
2

Petitioner objects to the court’s order and argues that Respondent failed to
address the merits of his claims in its motion to dismiss. (Dkt. # 19.)
Under Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts, a respondent may file a motion or other response to a petition, rather
than an answer. Additionally, this court has a responsibility to dismiss a petition “if it
plainly appears from the petition and any attached exhibits that the petitioner is not
entitled to relief.” Id. A petition must be dismissed when it is filed beyond the applicable
statute of limitations. Carter v. Klee, 286 F. Supp. 3d 846, 851 (E.D. Mich. 2018) (citing
28 U.S.C. § 2244(d)(1) and Isham v. Randle, 226 F.3d 691, 694–95 (6th Cir. 2000)).
The court concluded that the habeas petition here is barred by the one year
statute of limitations and Petitioner has presented no argument for why the court’s
conclusion is incorrect. Petitioner’s objections are only an attempt to relitigate his timebarred claims. Likewise, Petitioner’s request for a COA focuses on the merits of his
substantive claims and why they are worthy of appellate review. (Dkt. # 20, Pg. ID 755.)
In sum, Petitioner has not identified a palpable defect in the court’s order denying his
petition for writ of habeas corpus and denying a COA.
Accordingly,
IT IS ORDERED that the Motion for an Extension of Time (Dkt. # 18), is DENIED
AS MOOT.

3

IT IS FURTHER ORDERED that Petitioner’s Objections (Dkt. # 19), and Motion
For a Certificate of Appealability (Dkt. # 20) are DENIED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

/

Dated: July 10, 2018

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 10, 2018, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

s/Cleland/judge’sdesk/C2order/17-11078.LGREENE.DenyCOA.staffy.aju

4

/