Gilkey v. Burton

Filing 24

ORDER granting 22 Motion to amend, granting 23 Motion to alter or amend judgment and reinstating habeas petition. Signed by District Judge Terrence G. Berg. (DPer)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARIUS LEIGH GILKEY,
Petitioner,

2:17-CV-12753-TGB-APP
ORDER
(1) GRANTING PETITIONER’S
MOTION TO ALTER OR
AMEND JUDGMENT,

vs.
DEWAYNE BURTON,
Respondent.

(2) REINSTATING HABEAS
PETITION, AND
(3) GRANTING MOTION TO
AMEND

This matter is before the Court on Petitioner’s Motion to Alter or
Amend Judgment (ECF No. 23), and Motion to Amend Petition (ECF No.
22). Darius Leigh Gilkey, a Michigan state prisoner, filed an unsigned
and unverified petition for writ of habeas corpus challenging his
convictions for first-degree murder, Mich. Comp. Laws § 750.316, and
first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(e).
ECF No. 1. The Court ordered Petitioner to file a signed and verified
petition. See Order to Sign and Verify Petition, ECF No. 15, Second Order
to Sign and Verify Petition, ECF No. 19. When Petitioner failed to correct
the deficiency within the time allowed, the Court dismissed the petition
without prejudice. See Order Dismissing Pet. ECF No. 21.

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A.

Motion to Alter or Amend Judgment
On August 19, 2020, Petitioner filed a Motion to Alter or Amend the

judgment of dismissal. See ECF No. 23. Although Petitioner seeks relief
under Federal Rule of Civil Procedure 59(e), the Court construes such a
pro se pleading liberally, and the motion will be considered as a motion
for reconsideration.1
Local Rule 7.1(h)(3) governs motions for reconsideration and
provides as follows:
Generally, 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 reasonable implication. The movant
must not only demonstrate a palpable defect by which the
court and the parties 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(g)(3). A palpable defect is “(1) a clear error of law; (2)
newly discovered evidence; (3) an intervening change in controlling law;
or (4) a need to prevent manifest injustice.” Henderson v. Walled Lake
Consol. Sch., 469 F.3d 479, 496 (6th Cir. 2006).
Petitioner has now filed a corrected petition. See ECF No. 20,
PageID.1021. Petitioner maintains that he diligently sought to comply
Motions to alter or amend judgment under Fed. R. Civ. P. 59(e) may be
granted only if there is a clear error of law, newly discovered evidence, an
intervening change in controlling law, or to prevent manifest injustice.
GenCorp., Inc. v. Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999).
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with the Court’s Orders. He did not retain a copy of his petition and made
several attempts to obtain one so that he could file a signed and verified
copy. The COVID-19 pandemic caused multiple delays preventing him
from filing a corrected petition. The Court finds that Petitioner diligently
attempted to correct the filing deficiency and that the delay in doing so is
attributable to conditions beyond his control. See ECF No. 23,
PageID.1081-82. Holding him responsible for these circumstances and
preventing his claim from being heard on the merits would be a “manifest
injustice.” Accordingly, the Court grants Petitioner’s Motion and
reinstates the petition.
B.

Motion to Amend Petition
Next, Petitioner has filed a motion to amend his petition. See ECF

No. 22. He seeks to amend the petition to supplement his ineffective
assistance of counsel claim challenging counsel’s decision not to call an
expert witness to counter the prosecution’s DNA expert.
Under Fed. R. Civ. P. 15, after an answer has been filed, a party
may amend only with the opposing party’s written consent or leave of
court. Fed. R. Civ. P. 15(a)(2). The rule provides that the court should
“freely give leave when justice so requires.” Id. When determining
whether to grant leave to amend, the district court should consider
“[u]ndue delay in filing, lack of notice to the opposing party, bad faith by
the moving party, repeated failure to cure deficiencies by previous
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amendments, undue prejudice to the opposing party, and futility of
amendment . . . .” Coe v. Bell, 161 F.3d 320, 341 (6th Cir.1998).
The proposed amendment does not raise a new claim; instead, the
proposed amendment provides additional support for the ineffective
assistance of counsel claim raised in the original petition. See ECF No.
20, PageID.1024; ECF No. 22, PageID.1069. The Court finds Respondent
would not be prejudiced by allowing the amendment. Further, the Court
finds that the delay in seeking leave to amend was not excessive nor the
result of bad faith. Thus, the Court grants the motion to amend. See
Wiedbrauk v. Lavigne, 174 F. App’x 993, 1000 (6th Cir. 2006).
CONCLUSION
Petitioner’s Motion to Alter or Amend Judgment (ECF No. 23) is
GRANTED and the petition for writ of habeas corpus is REINSTATED.
The Clerk of Court is ORDERED to reopen this proceeding. Petitioner’s
Motion to Amend (ECF No. 22) is also GRANTED.
SO ORDERED, this 8th day of January, 2021.
BY THE COURT:
s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge

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