Moore v. Mackie
Filing
62
OPINION and ORDER (1) GRANTING IN PART AND DENYING IN PART 58 MOTION FOR RECONSIDERATION AND (2) DENYING AS MOOT 57 MOTION FOR STAY AND ABEYANCE.. Signed by District Judge Linda V. Parker. (AFla)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MATTHEW MOORE,
Petitioner,
Civil No. 4:16-CV-10874
HONORABLE LINDA V. PARKER
v.
THOMAS MACKIE,
Respondent.
____________________________/
OPINION & ORDER (1) GRANTING IN PART AND DENYING IN PART
MOTION FOR RECONSIDERATION (ECF NO. 58) AND (2) DENYING AS
MOOT MOTION FOR STAY AND ABEYANCE (ECF NO. 57)
Petitioner Matthew Moore, presently incarcerated at the Oaks Correctional
Facility in Manistee, Michigan, filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (ECF No. 1). The Court subsequently appointed
counsel for Petitioner. (ECF Nos. 16, 27.) On February 22, 2021, the Court issued
an Opinion & Order denying the habeas petition, declining to issue a certificate of
appealability, and denying leave to appeal in forma pauperis. (ECF No. 55.)
The Court also denied Petitioner’s request that the habeas petition be held in
abeyance, or dismissed without prejudice, to afford him an opportunity to raise the
issue of ineffective assistance of appellate counsel in state court. (Id. at Pg. ID
1379-81.) The Court explained:
MC.R. 6.502(G)(2) states that a defendant may file a
second or subsequent motion based on a retroactive
change in law that occurred after the first motion for relief
from judgment or a claim of new evidence that was not
discovered before the first such motion. Banks, 149 Fed.
Appx. at 418. The Sixth Circuit has explained that courts
should exercise caution in finding that a state procedural
rule bars a petitioner from presenting his ineffective
assistance claim in Michigan courts because Michigan
courts have not had the opportunity to pass on this
question for themselves. Id. Thus, “[w]here a state
procedural rule, if applicable, would cause a petitioner to
default an otherwise unexhausted claim, the habeas court
should find procedural default only ‘if it is clear that [the]
claims are now procedurally barred under [state] law.’” Id.
(emphasis in original) (quoting Gray v. Netherland, 518
U.S. 152, 161-62 (1996)). Here, Petitioner does not allege
in his briefs that his ineffective assistance of appellate
counsel claim is based on newly discovered evidence or
that a successive motion for relief from judgment would
be based on a retroactive change in the law. (See generally
ECF No. 51.) Accordingly, there appears to be no
likelihood that the state courts will permit Petitioner to file
a successive post-conviction motion for relief from
judgment pursuant to any exception contained in M.C.R.
6.502(G)(2), a procedural bar to Petitioner filing such a
successive motion is applicable and, therefore, the Court
denies Petitioner’s request to hold his habeas petition in
abeyance. See Banks, 149 Fed. Appx. at 419-20. The
Court denies Petitioner’s request for a dismissal without
prejudice for the same reason.
(Id.)
Presently before the Court is Petitioner’s Motion for Reconsideration. (ECF
No. 58.) Local Rule 7.1 provides the following standard of review for motions for
reconsideration:
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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 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. LR 7.1(h)(3). Palpable defects are those which are “obvious, clear,
unmistakable, manifest or plain.” Mich. Dep’t of Treasury v. Michalec, 181 F.
Supp. 2d 731, 734 (E.D. Mich. 2002). “It is an exception to the norm for the Court
to grant a motion for reconsideration.” Maiberger v. City of Livonia, 724 F. Supp.
2d 759, 780 (E.D. Mich. 2010). “[A] motion for reconsideration is not properly
used as a vehicle to re-hash old arguments or to advance positions that could have
been argued earlier but were not.” Smith ex rel. Smith v. Mount Pleasant Pub.
Sch., 298 F. Supp. 2d 636, 637 (E.D. Mich. 2003) (citing Sault Ste. Marie Tribe of
Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)).
In his Motion for Reconsideration, Petitioner requests that the Court
reconsider its decision that Petitioner may not proceed in forma pauperis on
appeal. (ECF No. 58 at Pg. ID 1393.) Petitioner points out that counsel in this
case was appointed in accordance with the Criminal Justice Act, 18 U.S.C.
§ 3006A, et seq. (Id. at 1395 (citing ECF No. 27 at Pg. ID 893).) “As such,”
Petitioner argues, “the provisions of the Criminal Justice Act apply to this case and
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override the provisions of 18 U.S.C. § 1915.” Petitioner is correct. Because the
Criminal Justice Act states that a petitioner “may” appeal “without prepayment of
fees and costs or security therefor,” 18 U.S.C. § 3006A(d)(7), the Court grants
Petitioner’s Motion for Reconsideration as it concerns proceeding on appeal in
forma pauperis.
Petitioner also asks that the Court reconsider its decision regarding his
request to hold the habeas petition in abeyance. (ECF No. 58 at Pg. ID 1396.)
Petitioner argues that “[t]here is no question that Petitioner received abysmally
incompetent representation.” (Id.) So “[t]he negative impact on the federal court
of holding this action in abeyance would be minimal compared to the possibility,
even if small, that a state court judge might afford Petitioner the opportunity to
address the cascade of ineffective assistance of counsel.” (Id.) This argument is
akin to the one that Petitioner raised in his supplemental filing during the habeas
petition briefing. (ECF No. 51 at pg. ID 1349 (requesting abeyance or dismissal
without prejudice “notwithstanding the difficulties that will be encountered in
filing a successive Motion for Relief from Judgment”).) Because courts do not
grant motions for reconsideration that merely re-hash old arguments or present the
same issues already ruled upon, see Smith ex rel., 298 F. Supp. 2d at 637 (citing
Sault Ste. Marie, 146 F.3d at 374); E.D. Mich. LR 7.1(h)(3), the Court will not
hold the habeas petition in abeyance.
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Accordingly,
IT IS ORDERED that Petitioner’s Motion for Reconsideration (ECF No.
58) is GRANTED IN PART AND DENIED IN PART. The Court will not hold
the above-captioned case in abeyance, but Petitioner may proceed in forma
pauperis on appeal.
IT IS FURTHER ORDERED that Petitioner’s Motion for Stay and
Abeyance (ECF No. 57) is DENIED AS MOOT.
IT SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: April 16, 2021
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