Pearson v. Bell

Filing 19

ORDER denying Petitioner a Certificate of Appealability. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
LINDSEY PEARSON,
Petitioner,
v.

Case Number 07-15107
Honorable Thomas L. Ludington

THOMAS K. BELL,
Respondent.
________________________________/
ORDER DENYING PETITIONER A CERTIFICATE OF APPEALABILITY
On November 30, 2007, Petitioner Lindsey Pearson, through counsel, filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254, arising out of a 1974 conviction and life sentence
for first-degree murder. On December 13, 2007, Judge Paul V. Gadola transferred the case to the
United States Court of Appeals for the Sixth Circuit as a “second or successive” petition. See 28
U.S.C. 2244(b)(3)(A). Judge Gadola noted that Petitioner had previously filed a federal habeas
petition challenging the 1974 conviction in 1979, which was denied. See Pearson v. Anderson, No.
79-74844 (E.D. Mich. Dec. 4, 1980), aff’d, 672 F.2d 917 (table) (6th Cir. 1981).
Before the Sixth Circuit, Petitioner argued that his petition is not in fact a “second or
successive” habeas petition, simply because it is “second in time.” In re Pearson, No. 08-1960 (6th
Cir. brief filed Oct. 17, 2008). Petitioner explained as follows: Petitioner’s 1974 conviction for first
degree murder and life sentence were originally affirmed by the Michigan Court of Appeals and the
Michigan Supreme Court, see People v. Pearson, 232 N.W.2d 408 (Mich. Ct. App. 1975), aff’d, 273
N.W.2d 856 (Mich. 1979). Eventually, after the denial of his 1979 federal habeas petition, in
2005,the trial court granted a post-conviction motion filed by Petitioner, reduced his conviction to
second-degree murder, and resentenced Petitioner to twenty to thirty years of imprisonment. See

People v. Pearson, No. 73-06302 (Wayne County Cir. Ct. Mar. 11, 2005). The sentencing order was
stayed pending appeal. See id. (order entered Apr. 7, 2005). After the state appealed, the Michigan
Court of Appeals reinstated the original conviction and life sentence. See People v. Pearson, No.
262310, 2005 WL 3481458 (Mich. Ct. App. Dec. 20, 2005), leave to appeal denied, No. 130517
(Mich. Nov. 30, 2006).
Petitioner characterized his 2007, “second in time” habeas petition as challenging the 2005
reinstatement of the original conviction and life sentence, rather than the 1974 conviction itself. The
Sixth Circuit rejected Petitioner’s argument, determined that the 2007 petition is a “second or
successive” petition, and concluded that Petitioner did not “identify any new rule of constitutional
law made retroactive by a decision of the Supreme Court or identify any new facts that would
persuade a fact finder that he was not guilty of the charge as required by § 2244(b)(2).” In re
Pearson, No. 08-1960 (6th Cir. Mar. 12, 2009).
Petitioner then brought a motion for reinstatement of his habeas petition pursuant to Federal
Rule of Civil Procedure 60(b)(6) [Dkt. #4, as amended, Dkt. #6] and a motion to reopen the case
[Dkt. # 5], which were filed March 11, 2010, through counsel. The Court issued an order denying
Petitioner’s motion to reopen the case, and denying Petitioner’s amended motion for reinstatement
of his habeas petition [Dkt. #7] on June 30, 2010. The Court found that Petitioner had not identified
any extraordinary circumstances that justify relief pursuant to Rule 60(b)(6), and had not identified
any intervening developments in the law or any other special circumstances that justify relief.
Furthermore, Petitioner’s motion was not truly seeking relief under Rule 60(b), but was instead
attempting to appeal the Sixth Circuit’s decision that his 2007 habeas petition was a second or
successive habeas petition challenging his 1974 conviction, rather than an initial petition challenging

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the 2005 reinstatement of the 1974 conviction and life sentence. On August 2, 2010, Petitioner filed
a notice of appeal [Dkt. #16] of the Court’s June 30, 2010 order. For the reasons provided below,
the Court will deny Petitioner a certificate of appealability.
A certificate of appealability is necessary to appeal the denial of a Rule 60(b) motion for
relief from judgment. Johnson v. Bell, 605 F.3d 333, 336 (6th Cir. 2010) (citing United States v.
Hardin, 481 F.3d 924, 926 (6th Cir. 2007)), petition for cert. filed, No. 10-1009, 79 U.S.L.W. 3480
(U.S. Feb. 7, 2011). “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), which the United
States Supreme Court has construed to mean that an applicant must show that reasonable jurists
could debate that the petition could have been resolved differently or that the claims raised deserved
further review.” Id. at 339 (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)).
Reasonable jurists would not conclude that the issue raised here deserve further review.
Therefore, a certificate of appealability is DENIED.
Accordingly, it is ORDERED that a certificate of appealability as to the Court’s June 30,
2010 order [Dkt. #7] is DENIED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: April 19, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney of record herein by electronic means and upon
Lindsey Pearson #137532, at Carson City Correctional Facility, 10522
Boyer Road, Carson City, MI 48811 by first class U.S. mail on April
19, 2011.
s/Tracy A. Jacobs
TRACY A. JACOBS

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