Sutton v. Mackie

Filing 34

ORDER Denying 32 Application filed by Joseph Sutton Signed by District Judge Sean F. Cox. (JMcC)

Case 2:18-cv-10802-SFC-PTM ECF No. 34, PageID.4345 Filed 08/05/21 Page 1 of 5

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH A. SUTTON,
Petitioner,
v.

Case No. 2:18-cv-10802
Honorable Sean F. Cox

THOMAS MACKIE,
Respondent.
_________________________________/
ORDER DENYING PETITIONER’S APPLICATION
FOR A CERTIFICATE OF APPEALABILITY
Petitioner Joseph A. Sutton, a state prisoner in custody of the Michigan
Department of Corrections, has appealed the Court’s denial of his amended habeas
corpus petition. The amended petition challenged Petitioner’s state convictions for
second-degree murder and two firearm offenses. He alleged as grounds for relief
that: (1) the state prosecutor suppressed evidence that a key witness was threatened;
(2) trial counsel was ineffective for failing to notify the trial court that death threats
were made against the prosecution witness to induce his trial testimony; (3) trial
counsel’s failure to produce expert witnesses was prejudicial; and (4) appellate
counsel was ineffective for failing to raise certain issues on direct review. The Court
denied the amended petition on the merits. (ECF No. 28.)

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Now before the Court is Petitioner’s application for a certificate of
appealability. (ECF No. 32.) Petitioner alleges in his application that the Court
misperceived evidence and information concerning his Brady1 claim and that the
Court appeared to review his habeas claims with a biased attitude and a disregard
for the evidence and facts. Id. at PageID.4322.
I. DISCUSSION
A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
To satisfy this standard, a prisoner must demonstrate that reasonable jurists could
either disagree with the district court’s resolution of his constitutional claims or
conclude the issues presented are adequate to deserve encouragement to proceed
further.

Miller-El

v.

Cockrell,

537

U.S.

322,

327

(2003).

The Court declined to issue a certificate of appealability in its dispositive
opinion and order. The Court, therefore, will treat Petitioner’s application for a
certificate of appealability as a motion for reconsideration. This District’s Local
Rules provide that
[g]enerally, and without restricting the Court’s discretion, the Court
will not grant motions for rehearing or reconsideration that merely

1

See Brady v. Maryland, 373 U.S. 83 (1963).

2

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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 and other persons
entitled to be heard on the motion 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(h)(3). “A ‘palpable defect’ is a defect which is obvious, clear,
unmistakable, manifest, or plain.” Michigan Dep’t of Envtl. Quality v. City of Flint,
296 F. Supp. 3d 842, 847 (E.D. Mich. 2017).
In his application for a certificate of appealability, Petitioner challenges the
credibility of the two main prosecution witnesses at his trial, Andre Christian and
Charmane Murphy. Petitioner reasserts his Brady claim that the prosecutor lied to
the trial court and violated his right to due process by failing to disclose certain
evidence about threats made to Christian. The Court rejected this issue in its
dispositive opinion because the record did not support Petitioner’s claims that the
prosecution (1) deceived the trial court about how it discovered Christian or (2)
suppressed evidence of threats made against Petition. Petitioner has not shown that
the Court’s decision contained a palpable defect and that correcting the defect would
result in a different disposition of the case.
The Court also previously addressed Petitioner’s concerns about Murphy’s
credibility, given her history of mental illness. The Court determined that trial
counsel was not ineffective for failing to call experts witness to testify about
Murphy’s psychiatric records.

The court stated that an expert witness was
3

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unnecessary because defense counsel adequately challenged Murphy’s testimony in
other ways. Petitioner has not demonstrated that this conclusion amounted to a
palpable defect.
Petitioner also contends in his application for a certificate of appealability that
trial counsel was ineffective because she failed to present relevant evidence that
Christian was biased against Petitioner. See Brief in Support of Application for a
Certificate of Appealability, ECF No. 32, PageID.4337. But this is a new claim that
Petitioner did not raise in his habeas petition, and his application for a certificate of
appealability is not the proper place to raise a new claim. To the extent that
Petitioner is raising a new basis for habeas corpus relief, that portion of his
application is the equivalent of a second or successive habeas petition. The Court
has no jurisdiction to consider Petitioner’s new claim unless he first obtains
permission from the Sixth Circuit Court of Appeals for authorization to file a second
or successive petition. 28 U.S.C. § 2244(b)(3)(A); Franklin v. Jenkins, 839 F.3d
465, 475 (6th Cir. 2016) (citing 28 U.S.C. § 2244(b)(3) and Burton v. Stewart, 549
U.S. 147, 149 (2007)).
II. CONCLUSION AND ORDER
Petitioner is raising the same issues that the Court ruled on, either expressly
or by reasonable implication, in its dispositive opinion. He has failed to show that
the Court was biased against him, that it misperceived the facts, or that it made a
4

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palpable error and that correcting the defect will result in a different disposition of
the case.
Accordingly, the Court denies Petitioner’s application for a certificate of
appealability (ECF No. 32).
IT IS SO ORDERED.
Dated: August 5, 2021

s/Sean F. Cox
Sean F. Cox
U. S. District Judge

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