Pennebaker v. Jackson

Filing 29

OPINION AND ORDER denying 22 Motion for consideration; denying 24 Motion for reconsideration; denying 26 27 Motions to reopen or extend time to file an appeal; and Denying Petitioner's Request for a certificate of appealability and permission to appeal in forma pauperis. Signed by District Judge Judith E. Levy. (WBar)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Danny R. Pennebaker,
Petitioner,

v.
Randee

Rewerts,1

Warden,

Respondent.

Case No. 17-12196
Hon. Judith E. Levy
United States District Judge
Mag. J. David R. Grand

_________________________________/
OPINION AND ORDER DENYING PETITIONER’S MOTION
FOR RECONSIDERATION [24], DENYING AS MOOT
PETITIONER’S MOTION FOR CONSIDERATION OF HABEAS
CORPUS PETITION [22], AND DENYING PETITIONER’S
MOTIONS TO REOPEN OR EXTEND TIME TO APPEAL [26, 27]
Petitioner Danny R. Pennebaker, a prisoner currently confined at
the Carson City Correctional Facility, in Carson City, Michigan, filed a
pro se petition challenging his convictions for felonious assault and
assault with intent to rob while armed. He sought habeas corpus relief
on the ground that his trial counsel was constitutionally ineffective for

The proper respondent for a state prisoner seeking habeas relief pursuant to
28 U.S.C. § 2254 is the state officer having custody of the petitioner. See Rule 2(a) of
the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. The Court orders the case
caption amended to reflect the name of the warden of Carson City Correctional
Facility, Randee Rewerts.
1

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conceding guilt on the felonious assault charges after Petitioner had
asserted his innocence. The Court denied relief in an Order dated July
27, 2020. (ECF No. 18.) The Court’s Order was mailed to Petitioner but
was returned as undeliverable. (ECF No. 21.) Petitioner asserts that he
did not receive the Court’s Order until September 8, 2020. (ECF Nos. 24,
26.)
Now before the Court are four motions filed by Petitioner. The first
motion, filed before Petitioner received notice that his petition was
denied, sought a ruling on the habeas petition. (ECF No. 22.) Next,
Petitioner filed a motion for reconsideration2 of the Court’s denial of his
habeas petition. (ECF No. 24.) On September 22, 2020, Petitioner filed a
Notice of Appeal (ECF No. 23), which was followed by two motions
requesting this Court reopen or extend his time to appeal, on October 19,

Petitioner’s motion for reconsideration was erroneously docketed as filed
September 22, 2020. Under the “prison mailbox rule,” the motion was filed on
September 14, 2020, when it was signed and provided to prison authorities for
delivery via U.S. Postal Mail. (See ECF No. 24, PageID.792). United States v.
Smotherman, 838 F.3d 736, 737 (6th Cir. 2016) (citing Houston v. Lack, 487 U.S. 266,
276 (1988); Tanner v. Yukins, 776 F.3d 434, 436 (6th Cir. 2015)) (other citations
omitted) (recognizing the “typical rule that a pro se prisoner’s” pleadings are
considered filed when submitted for mailing to the court).
2

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2020, and December 16, 2020. (ECF Nos. 26, 27.) For the reasons stated
below, all motions are denied.
I. Background
Petitioner was convicted at a jury trial in Jackson County,
Michigan, of two counts of assault with intent to rob while armed
(“AWIRA”), Mich. Comp. Laws § 750.89; and two counts of felonious
assault (assault with a dangerous weapon), Mich. Comp. Laws § 750.82,
for pulling a knife on two individuals. People v. Pennebaker, No. 322117,
2015 WL 6439047, at *1 (Mich. Ct. App. Oct. 22, 2015) (unpublished) (per
curiam).
Following a direct appeal by right and collateral motions in the
state courts, Petitioner filed an application for the writ of habeas corpus
in this Court. (ECF No. 1.) Petitioner’s sole issue was that his trial
attorney was ineffective because he “admit[ed] guilt to two counts of
felon[i]ous assault, without my consent, after I have already rejected a
plea bargain to admit guilt to only one count of felon[i]ous assault.” (Id.
at PageID.6.)
On July 27, 2020, the Court dismissed Petitioner’s application for a
writ of habeas corpus because he did not establish his entitlement to
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relief. (ECF No. 18.) It also declined to issue a certificate of appealability
or grant Petitioner pauper status on appeal. (Id.)
Petitioner’s motion for “consideration” of his petition, requesting
the Court grant or deny it, was filed on August 19, 2020. (ECF No. 22.)
As the petition had already been denied, this motion was moot when it
was filed. Petitioner’s motion for reconsideration argues that the Court
erred in its understanding and analysis of his habeas claim. (ECF No.
24.) Alternatively, the motion contends that the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”) should not apply to Petitioner’s
case. (Id.)
Petitioner asserts that he did not receive notice of the July 27, 2020,
Order and Judgment until September 8, 2020, after it was sent to him by
the Jackson County appellate prosecutor. (Pet. Mot. Reconsid., ECF No.
24, PageID.786–87; see also Pet. Mot. Reopen/Ext. Time, ECF No. 26,
PageID.799 (letter from prosecutor).) Petitioner’s account is supported by
the case docket, which indicates the order sent to him was returned to
the Court by the Michigan Department of Corrections. (See ECF No. 21.)
Petitioner filed a notice of appeal of the dismissal on September 22,
2020. (ECF No. 23.) He also filed two motions to reopen or extend the
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time to appeal, on October 21, 2020 and December 16, 2020, again noting
that he did not receive this Court’s July 27, 2020 Order until several
weeks after it was entered. (ECF Nos. 26, 27.)
On December 1, 2020, the Sixth Circuit dismissed Petitioner’s
appeal for lack of jurisdiction because he did not file it within thirty days
of the order dismissing his habeas petition and he had not moved for an
extension or reopening of the time to file by this court. (See Sixth Circuit
Court of Appeals Case No. 20-1968, Order, Dec. 1, 2020, ECF No. 15-2.)
On January 20, 2021, that Court denied Petitioner’s motion for
reconsideration, reiterating that his October 2020 motion to reopen his
time to appeal was filed too late. (Case No. 17-12196, ECF No. 28.)
II. Legal Standard
Petitioner

does

not

state

the

basis

for

his

motion

for

reconsideration. Pleadings by pro se litigators must be construed liberally
and “held to less stringent standards than formal pleadings drafted by
lawyers[.]” Erickson v. Pardus, 551 U.S. 89, 90 (2007) (citing Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). Because Petitioner’s argument is with
the Court’s legal analysis, the Court construes his motion as brought
pursuant to Fed. R. Civ. P. 59 or 60(b)(1). A court “may grant a timely
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Rule 59 motion to alter or amend [a] judgment to correct a clear error of
law . . .” Volunteer Energy Servs., Inc. v. Option Energy, LLC, 579 F. App’x
319, 330 (6th Cir. 2014) (quoting Doran v. Comm’r of Soc. Sec., 467 F.
App’x 446, 448 (6th Cir. 2012)). Relief under Rule 60(b)(1) is available
“when the judge has made a substantive mistake of law or fact in the
final judgment or order.” United States v. Reyes, 307 F.3d 451, 455 (6th
Cir. 2002) (citing Cacevic v. City of Hazel Park, 226 F.3d 483, 490 (6th
Cir. 2000)).
Motions for reconsideration are also governed by Local Rule 7.1 of
the Eastern District of Michigan. Hence v. Smith, 49 F. Supp. 2d 547, 550
(E.D. Mich. 1999). A motion for reconsideration should be granted if the
movant demonstrates a palpable defect by which the court and the
parties have been misled and that a different disposition of the case must
result from a correction thereof. Ward v. Wolfenbarger, 340 F. Supp. 2d,
773, 774 (E.D. Mich. 2004); Hence, 49 F. Supp. 2d at 550-51 (citing L.R.
7.1(g)(3)). Under Local Rule 7.1, a motion that merely presents “the same
issues ruled upon by the Court, either expressly or by reasonable
implication,” shall be denied. Ward, 340 F. Supp. 2d at 774.

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III. Analysis
A. Motion for Reconsideration
Petitioner asserts in his motion for reconsideration that the Court
misunderstood his sole issue of ineffective assistance; specifically,
overlooking his claim of structural error and mistakenly analyzing the
issue for harmless error. (ECF No. 24, PageID.787.). He seeks review of
the “proper issue” or alternatively, analysis “outside the constraints” of
the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). (Id. at
PageID.788.) Petitioner also argues that McCoy v. Louisiana, 138 S. Ct.
1500 (2018), applies to his case because it was decided before the state
court issued its decision on collateral review. (Id. at PageID.789-90.)
First, under E.D. Mich. Local Rule 7.1, Petitioner’s motion is denied
because his arguments for reconsideration are the same as those
considered by the Court in its original order. Hence, 49 F. Supp. 2d at
553. In addition, contrary to Petitioner’s assertions, the Court analyzed
whether McCoy entitled Petitioner to relief (see ECF No. 18, PageID.759–
62), and further, it expressly reached the question of structural error he
argues the Court overlooked. The order explained the appropriate
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inquiry in Petitioner’s case was ineffective assistance of counsel under
Florida v. Nixon, 543 U.S. 175 (2004), not structural error under McCoy.
(Id. at 762.) Petitioner is thus not entitled to relief on this motion.
Alternatively, Petitioner argues AEDPA should not apply to his
habeas petition because “the state courts were given an opportunity to
address, as new evidence, the plea rejection issue and refusal to admit
guilt . . .” but they did not do so. (ECF No. 24, PageID.788.) Petitioner
describes this “new evidence” as “the details of the rejected plea offer . . .
which outlines and validates the refusal to admit guilt to only one count
of FA in a plea offer.” (Id. at 791, n. 2.) Petitioner refers to a letter by his
first appointed trial counsel. (Id.; see also Pet. Mot. Rel. fr. J., ECF No.
15-1, PageID. 686.) However, the attorney’s letters provide no details of
the plea offer, at best referring only to a “verbal plea offer, should Mr.
Pennebaker waive preliminary examination.” (See Pet. Mot. Expand
Rec., ECF No. 12, PageID.144; see generally id. at PageID.143–47.) In
fact, counsel’s letters are clear that any record of the offer and his
rejection of it, which might have informed successor counsel of
Petitioner’s purported assertion of innocence, likely did not exist and
would not have been in his criminal case file. (See id. at PageID.143–47.)
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Regardless, the presence or absence of a record of the plea offer’s
details and Petitioner’s rejection of it does not change the outcome here.
As explained in the Court’s order dismissing the petition, the single
rejection of a plea offer months before trial simply does not correspond to
the “strenuous[] object[ions]” the defendant in McCoy raised “at every
opportunity.” McCoy, 138 S. Ct. at 1509, 1512. Petitioner’s “new
evidence” does not demonstrate he is entitled to relief under McCoy.
In sum, Petitioner has identified no palpable error, the correction
of which would result in a different outcome. For the reasons stated in
the Court’s July 27, 2020 Order, Petitioner is not entitled to a certificate
of appealability because he has not made a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(2). In addition,
because an appeal from this decision would be frivolous and could not be
taken in good faith, Petitioner may not proceed in forma pauperis on
appeal. See Coppedge v. U.S., 369 U.S. 438, 444 (1962); Fed. R. App. P.
24(a)(3)(A).
B. Motion to reopen or extend time to appeal
The Sixth Circuit has ruled that Petitioner’s motion to reopen or
extend his time to appeal was untimely and has rejected his motion to
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reconsider that ruling. (See Sixth Circuit Court of Appeals Case No. 201968, Order, Dec. 1, 2020, ECF No. 15-2; Sixth Circuit Order, Jan. 20,
2021, Case No. 17-12196, ECF No. 28.) The Court will explain in more
detail why Petitioner is not entitled to relief, and why his pending motion
for reconsideration in this Court does not dictate a different outcome.
First, the Federal Rules of Appellate Procedure require that a
notice of appeal “must be filed with the district clerk within 30 days after
entry of the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A).
A party seeking to extend the deadline or reopen the time to file an appeal
must file a motion requesting such relief in the district court. R. 4(a)(5),
(6).
A court may grant a motion for extension of time that is filed “no
later than 30 days” after the expiration of the thirty-day time to file. R.
4(a)(5)(A); see also Tanner v. Yukins, 776 F.3d 434, 438 (6th Cir. 2015).
Petitioner’s first motion to reopen the deadline or extend the time (ECF
No. 26) exceeds that sixty-day limit, because it was filed October 19, 2020,
eighty-four days after the entry of the order dismissing his petition.
Rule 4 permits a district court to reopen—for fourteen days—a
party’s time to file an appeal if two conditions are met: first, that the
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party did not receive notice of the order being appealed within twentyone days of its entry; and second, that the motion to reopen be filed within
the earlier of fourteen days after receiving notice or 180 days after the
order or judgement is entered. R. 4(a)(6)(A), (B); 28 U.S.C. § 2107(c); Hall
v. Scutt, 482 F. App’x 990, 990–91 (6th Cir. 2012) (citing Bowles v.
Russell, 432 F.3d 668, 672 (6th Cir. 2005), aff’d, 551 U.S. 205 (2007))
(“Rule 4(a)(6) is the exclusive remedy for reopening the time to file an
appeal”).
Petitioner meets the first criterion, having received notice of the
Court’s July 27, 2020 Order on September 8, 2020, six weeks after its
entry. However, he failed to file his motion to reopen the time to appeal
within the fourteen days following notice as required by Rule 4(a)(6)(B).
Petitioner asserts in an affidavit filed with his second motion to
extend or reopen his time to file that he filed such a motion on September
15, 2020, in both the district court and the Sixth Circuit Court of Appeals.
(ECF No. 27, PageID.811.) He stated the pleading also included motions
to reconsider, for a certificate of appealability, and for leave to proceed in
forma pauperis on appeal. (Id.) A pleading filed at the Sixth Circuit dated
September 14, 2020 includes the latter three motions. (Docket No. 2011

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1968, Dkt. Entry 3-2.) However, the document does not include a request
to extend the time to appeal. Further, the Court has reviewed in detail
Petitioner’s pleadings in both the district court and the court of appeals
but finds no evidence that he requested such relief before October 19,
2020.
Nor may the Court grant relief because of Petitioner’s pending
motion for reconsideration, which can impact the timing of a notice of
appeal. R. 4(a)(4). Unfortunately for Petitioner, because the motion was
filed more than twenty-eight days after the Court’s Order and Judgment
were filed, it does not provide a basis to extend his time to appeal. R.
4(a)(4)(A)(iv)–(vi) (addressing motions brought pursuant to Fed. R. Civ.
P. 59 and 60); see also Hall, 482 F. App’x at 991 (citations omitted) (“Rule
60(b) cannot be used to circumvent Rule 4(a)(6)’s requirements.”);
McDonald v. Lasslett, No. 18-2435, 2019 WL 2592572, at *2 (6th Cir. May
28, 2019) (a motion for reconsideration filed “more than twenty-eight
days after the district court’s August 15 judgment . . . did not meet Rule
4(a)(4)(A)(vi)’s requirements”).
In Bowles, the Supreme Court held “the timely filing of a notice of
appeal in a civil case is a jurisdictional requirement” not subject to
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equitable exceptions. 551 U.S. at 214. Accordingly, the restrictions above
apply regardless of whether the party received notice within the rules’
time limits. As the Tenth Circuit has observed, “[t]he essence of Rule
4(a)(6) is finality of judgment” and the application of that finality “may
work misfortune . . .” Clark v. Lavallie, 204 F.3d 1038, 1041 (10th Cir.
2000). Petitioner was reasonably diligent in attempting to preserve his
rights and his circumstances reflect Clark’s “misfortune.” The Court is
sympathetic, but under Bowles and pursuant to the Sixth Circuit’s orders
in Petitioner’s appeal, Petitioner’s time to appeal will not be reopened.
IV. Conclusion
For

the

reasons

stated

above,

Petitioner’s

motion

for

reconsideration (ECF No. 24) is DENIED.
Petitioner’s motion for consideration of the habeas petition (ECF
No. 22) is DENIED AS MOOT.
Petitioner’s motions to reopen or extend the time to file an appeal
(ECF No. 26, 27) are DENIED.
Petitioner’s request for a certificate of appealability and permission
to appeal in forma pauperis is DENIED.
IT IS SO ORDERED.
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Dated: January 27, 2021
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
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 January 27, 2021.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager

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