Moses v. Hoffner

Filing 18

OPINION AND ORDER Denying Petitioner's 16 Motion for Reconsideration and Denying 17 Motion to Suspend Judgment. Signed by District Judge Mark A. Goldsmith. (Goltz, D)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMERO MOSES,
Petitioner,

Civil Action. No.
12-CV-13623

v.
HON. MARK A. GOLDSMITH
BONITA HOFFNER,
Respondent.
_______________________/
OPINION AND ORDER DENYING PETITIONER’S MOTION FOR
RECONSIDERATION AND THE MOTION TO SUSPEND JUDGMENT
On April 29, 2013, the Court summarily denied Petitioner’s application for a writ of
habeas corpus on the ground that it was time-barred by the statute of limitations contained in 28
U.S.C. § 2244(d). The Court also declined to issue a certificate of appealability or to grant leave
to appeal in forma pauperis. See Moses v. Hoffner, No. 12-CV-13263, 2013 WL 1800419 (E.D.
Mich. Apr. 29, 2013). Petitioner has now filed a motion for reconsideration and a motion to
suspend judgment. For the reasons that follow, the motions will be denied.
E.D. Mich. LR 7.1(h) governs motions for reconsideration.

Under that rule, “[t]he

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. LR 7.1(h).

“[T]he 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.” Id.
In his motion for reconsideration, Petitioner first argues that Respondent waived any
affirmative defenses, including the statute of limitations defense, by failing to provide Rule 5
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materials at the time that he filed the answer. Petitioner did not previously make this argument
in opposing Respondent’s motion for summary judgment and cannot now advance this new
argument as a basis to reconsider the Court’s decision granting summary judgment in favor of
Respondent. See Smith ex rel. Smith v. Mt. Pleasant Pub. Schs., 298 F. Supp. 2d 636, 637 (E.D.
Mich. 2003) (“[A] motion for reconsideration is not properly used as a vehicle to . . . advance
positions that could have been argued earlier but were not.”). In any event, Petitioner’s argument
is unpersuasive on the merits because a review of the Court’s docket establishes that Respondent
filed the Rule 5 materials on the same date that he filed the motion for summary judgment. To
the extent that Petitioner contends that the statute of limitations defense was waived by
Respondent’s failure to provide him with a copy of the Rule 5 materials, Petitioner has cited to
no authority in support of his argument and the Court is aware of none.
Petitioner further claims that the retroactive application of 28 U.S.C. § 2244(d) to his
case violates the ex post facto clause of the United States Constitution, because his conviction
became final prior to the effective date of the Antiterrorism and Effective Death Penalty Act
(AEDPA). However, as the Court noted in the opinion and order on summary judgment, the
provisions of the AEDPA, including the statute of limitations, apply to all habeas petitions filed
after the Act’s effective date, which was April 24, 1996. Because Petitioner’s habeas petition
was filed after this date, 28 U.S.C. § 2244(d) applied to the present habeas petition. See Lindh v.
Murphy, 521 U.S. 320, 336-37 (1997). The application of the AEDPA to a habeas petition filed
after the AEDPA’s effective date, but which involves a crime and a conviction which predated
the AEDPA, does not have an impermissible retroactive effect. See Williams v. Bagley, 380 F.
3d 982, 943 (6th Cir. 2004); see also Hyatt v. United States, 207 F. 3d 831, 832-33 (6th Cir.
2000) (application of the AEDPA’s one year limitations period for bringing a motion to vacate

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sentence pursuant to 28 U.S.C. § 2255 was prospective, not retroactive, even though the
defendant’s conviction predated the enactment date of the AEDPA, where the defendant filed his
motion to vacate after the effective date of the act).
In his motion to suspend judgment, Petitioner claims that the statute of limitations does
not apply because his criminal conviction suffers from a jurisdictional defect. However, the
mere fact that there may be a jurisdictional defect in Petitioner’s conviction would not mean that
the limitations period contained in § 2244(d) is inapplicable to his conviction. See Frazier v.
Moore, 252 F. App’x 1, 4 (6th Cir. 2007). Accordingly, the motion to suspend judgment is
denied.
Based on the foregoing, the motion for reconsideration (Dkt. 16) and the motion to
suspend judgment (Dkt. 17) are denied.
SO ORDERED.

Dated: June 10, 2013
Flint, Michigan

s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on June 10, 2013.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

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