Moore v. Smith
Filing
17
ORDER denying 16 Motion for Relief from Judgment; and Declining to Issue a Certificate of Appealability. Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LEONARR MOORE,
Petitioner,
v.
CASE NO. 11-cv-14319
HON. JOHN CORBETT O’MEARA
WILLIE O. SMITH,
Respondent.
_________________________/
ORDER DENYING PETITIONER’S SECOND MOTION FOR RELIEF FROM
JUDGMENT AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
This matter is pending before the Court on petitioner Leonarr Moore’s second
motion for relief from judgment. Because the motion raises the same issue that the
Court addressed in its previous order in this case, the motion will be denied.
I. Background
On September 30, 2011, Petitioner filed a pro se habeas corpus petition
challenging his Saginaw County convictions for drug and firearm offenses. He alleged
that his convictions were based on evidence obtained through an unconstitutional
search and seizure. On October 31, 2011, the Court summarily dismissed the petition
pursuant to the doctrine of Stone v. Powell, 428 U.S. 465, 482 (1976) (holding that,
“where the State has provided an opportunity for full and fair litigation of a Fourth
Amendment claim, the Constitution does not require that a state prisoner be granted
federal habeas corpus relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial”).
On January 13, 2012, Petitioner moved for a certificate of appealability, and on
January 30, 2012, he filed a notice of appeal. The Court denied the motion for a
certificate of appealability, and on July 6, 2012, the United States Court of Appeals for
the Sixth Circuit dismissed Petitioner’s appeal as untimely.
On July 31, 2012, Petitioner filed a motion for relief from judgment in which he
asked the Court to dismiss the Sixth Circuit’s order of July 6, 2012, and to accept his
late appeal on the basis of excusable neglect. On January 24, 2013, the Court denied
Petitioner’s motion on the ground that the Court was precluded from reconsidering the
Sixth Circuit’s decision regarding the timeliness of Petitioner’s appeal. The Court also
stated that Federal Rules of Appellate Procedure 4(a)(6) and 4(a)(5)(A)(i), which
authorize district courts to re-open or to extend the time to appeal, were not applicable.
Finally, the Court stated that the facts as alleged by Petitioner in his motion were
insufficient to constitute “excusable neglect” under Federal Rule of Civil Procedure
60(b)(1).
On February 6, 2013, Petitioner appealed the Court’s order denying his motion
for relief from judgment. On the same day, he filed a second motion for relief from
judgment, which is addressed to the Court of Appeals, but is now pending in this Court.
The first page of the motion states that Petitioner is seeking relief from this Court’s
January 24, 2013 order denying his first motion for relief from judgment. Attached to
that page is a copy of Petitioner’s first motion for relief from judgment, which he filed on
July 31, 2012.
II. Discussion
The Court believes that Petitioner intended to have the Court of Appeals address
his pending motion for relief from judgment. To the extent that he is asking this Court to
reconsider its January 24, 2013 order denying Petitioner’s first motion for relief from
judgment, he must show that the Court was mislead by a “palpable defect.” LR
7.1(h)(3) (E.D. Mich. Mar. 1, 2010). He must also show that “correcting the defect will
result in a different disposition of the case.” Id.
Petitioner appears to be alleging in his pending motion that his untimely appeal to
the Sixth Circuit Court of Appeals was due to excusable neglect on his part. He raised
this issue in his first motion for relief from judgment, which the Court denied on January
24, 2013. The Court may not grant a motion for reconsideration which presents the
same issue already ruled upon by the Court, id., and because Petitioner has raised no
other arguments demonstrating that the Court made a “palpable defect” in its previous
order, Petitioner is not entitled to relief from judgment. Accordingly, the pending motion
for relief from judgment [dkt. #16] is DENIED.
Reasonable jurists would not disagree with the Court’s resolution of Petitioner’s
motion. Nor would reasonable jurists conclude that Petitioner’s challenge to the Sixth
Circuit’s order dismissing his untimely appeal is “adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). The Court therefore
DECLINES to issue a certificate of appealability.
s/John Corbett O'Meara
United States District Judge
Date: April 12, 2013
3
I hereby certify that a copy of the foregoing document was served upon the
parties of record on this date, April 12, 2013, using the ECF system and/or ordinary
mail.
s/William Barkholz
Case Manager
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?