Johnson v. Rapelje

Filing 16

ORDER denying 15 Motion for Reconsideration. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DELANGELO JOHNSON,
Petitioner,
v.

Civil Action Number: 5:11-cv-14910
Honorable John Corbett O’Meara

LLOYD RAPELJE,
Respondent.
___________________________/
ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION
This 28 U.S.C. § 2254 matter is before the Court because Michigan prisoner Delangelo
Johnson (Petitioner) filed a “Motion for Reconsideration” [ECF No. 15] of the Court’s Opinion and
Order granting Respondent Lloyd Rapelje’s Motion for Summary Judgment on the basis that his
Habeas Petition was filed untimely. Johnson v. Rapelje, No. 5:11-cv-14910, 2012 WL 2711467
(E.D. Mich. July 9, 2012). Petitioner filed this Motion, through counsel, on July 16, 2012. For the
reasons that follow, the Court denies the Motion.
As an initial matter, a motion for rehearing or reconsideration must be filed within fourteen
days after entry of the Court’s Judgment or Order. See E.D.Mich. LR 7.1(h)(1). The Court issued
its Opinion and Order on July 9, 2012. Petitioner filed this Motion on July 16, 2012, seven days
after the Court’s decision. Petitioner’s Motion was filed in a timely manner.
Second, the Local Rule also outlines the elements that a petitioner must satisfy in order for
the Court to grant reconsideration. The Local Rule states that Petitioner must show “a palpable
defect by which the court and the parties and other persons entitled to be heard have been misled”
or “that correcting the defect will result in a different disposition of the case.” E.D.Mich. LR
7.1(h)(3). Additionally, a motion for reconsideration which presents issues already ruled upon by

the Court, either expressly or by reasonable implication, will not be granted. See Hence v. Smith,
49 F. Supp. 2d 547, 550 (E.D. Mich. 1999); Czajkowski v. Tindall & Assoc., P.C., 967 F. Supp. 951,
952 (E.D. Mich. 1997).
Petitioner is attempting to argue that the Court erred in its decision, finding that his Motion
for Relief from Judgment did not toll the statute of limitations period. The Court finds that
Petitioner fails to satisfy his burden under Local Rule 7.1(h)(3).
Petitioner’s convictions became final on October 24, 2005, ninety days after the Michigan
Supreme Court denied his Application for Leave to Appeal. The statute of limitations began to run
the next day, and Petitioner had one year from that date, or until October 25, 2006, in which to file
his Habeas Petition. He did not.
Rather, Petitioner filed a Motion for Relief from Judgment with the state trial court on
December 20, 2005. It was dismissed without prejudice on February 16, 2006. The statute of
limitations period was tolled during that period. Petitioner then had 308 days remaining in the
limitations period, or until December 22, 2006, in which to file his Habeas Petition or instead to
properly file another Motion for Relief from Judgment, which again would toll the limitations
period. Petitioner filed his next Motion for Relief from Judgment on June 23, 2008, well after the
limitations period had expired. He now argues that because his December 20 motion was dismissed
without prejudice, his subsequent Motion for Relief from Judgment, filed more than two years later,
on June 23, 2008 and dismissed on April 13, 2009, should be treated as an amendment to his
December 20, 2005 Motion.

Petitioner is mistaken. There is nothing in record indicating that the first Motion was stayed.

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It was dismissed without prejudice, thus allowing Petitioner an opportunity to obtain counsel to
represent him. However, counsel did not file the Motion until over two years later. That Motion
does not toll the limitations period because the period had expired.
With that, the Court concludes that Petitioner has not met his burden of showing a palpable
defect by which the Court has been misled or his burden of showing that a different disposition must
result, as required by Local Rule 7.1(h)(3).
Accordingly, the Court DENIES Petitioner’s “Motion for Reconsideration.” ECF No. 15.
This case is closed.
SO ORDERED.

s/John Corbett O'Meara
United States District Judge

Date: August 3, 2012

I hereby certify that a copy of the foregoing document was served upon the parties of record
on this date, August 3, 2012, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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