Bennett v. Woods

Filing 7

ORDER denying 6 Motion for Reconsideration. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ELLERY BENNETT, #796297,
Petitioner,
CASE NO. 5:16-CV-10784
HON. JOHN CORBETT O’MEARA

v.
JEFFREY WOODS,
Respondent.
__________________________________/

ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION
This matter is before the Court on Petitioner’s motion for reconsideration concerning the
Court’s March 14, 2016 non-prejudicial dismissal of his petition for a writ of habeas corpus for
failure to exhaust state court remedies. The Court also denied a certificate of appealability and
denied leave to proceed in forma pauperis on appeal. In this motion, Petitioner argues that the
exhaustion requirement should be excused based upon futility because the state courts are unlikely
to grant him relief on collateral review.
Having reviewed the matter, the Court finds no reason to reconsider its decision. 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 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 from a correction thereof, as
required by Local Rule 7.1(h)(3). Petitioner’s belief that he is unlikely to prevail on his claim in the
state courts does not establish futility. Courts routinely refuse to excuse the exhaustion requirement

based upon a petitioner’s own assessment that the likelihood of success in state court is, at best,
remote. See Spreitzer v. Schomig, 219 F.3d 639, 647 (7th Cir. 2000) (“‘[T]he pertinent question is
not whether the state court would be inclined to rule in the petitioner’s favor, but whether there is
any available state procedure for determining the merits of petitioner’s claim.’”) (quoting White v.
Peters, 990 F.2d 338, 342 (7th Cir. 1993)); Gibson v. Scheidemantel, 805 F.2d 135, 141 (3d Cir.
1986) (“[I]f we permitted such a prediction [of unlikely success] to constitute the type of futility
which would allow a federal court to excuse exhaustion, we would undermine the exhaustion
doctrine.”). Indeed, allowing the anticipated likelihood of success to excuse exhaustion would be
inconsistent with the exhaustion rule and unworkable in practice. The Court properly dismissed the
petition on exhaustion grounds. The Court also properly denied a certificate of appealability and
denied leave to proceed in forma pauperis on appeal. Accordingly, the Court DENIES Petitioner’s
motion for reconsideration. This case remains closed.
IT IS SO ORDERED.

s/John Corbett O’Meara
United States District Judge
Date: April 1, 2016

I hereby certify that a copy of the foregoing document was served upon the parties of record
on this date, April 1, 2016, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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