Brown v. Smith

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOSHUA MARTEZ BROWN, 2:17-CV-12097-TGB-RSW

Petitioner, HON. TERRENCE G. BERG

vs. ORDER DENYING MOTION

FOR AN EXTENSION OF

WILLIE SMITH, TIME (ECF No. 14) AND

MOTION TO ALTER OR

Respondent. AMEND THE JUDGMENT

(ECF No. 15)

Petitioner Joshua Martez Brown, a state prisoner in custody of the

Michigan Department of Corrections, filed a pro se habeas corpus petition

challenging his convictions for second-degree murder, Mich. Comp. Laws

§ 750.317, assault with intent to commit murder, Mich. Comp. Laws §

750.83, and possession of a firearm during the commission of a felony,

Mich. Comp. Laws § 750.227b. Petitioner claimed as grounds for relief

that: (1) his right to a speedy trial was violated because his second trial

commenced over a year after his first trial and 21 months after his

arraignment; (2) there was insufficient evidence at trial to prove that he

was guilty beyond a reasonable doubt; (3) the prosecutor violated his

right to due process by allowing a witness to give perjured testimony; (4)

the trial court violated his right to a fair trial by admitting in evidence

his cell phone, which was procured without a warrant; (5) his

constitutional rights were violated when he was not brought before a

judge or magistrate within 48 hours of his warrantless arrest; and (6) his

trial attorney was ineffective for failing to object to a defective complaint

and warrant. Pet., ECF No. 1, PageID.51, 45-48.

The Court determined on review of Petitioner’s claims that his

claims were procedurally defaulted, not cognizable on habeas review,

and/or meritless. Accordingly, on October 30, 2020, the Court denied the

habeas petition, declined to issue a certificate of appealability, and

granted Petitioner permission to appeal the Court’s decision in forma

pauperis. Op., ECF No. 12, PageID.3469.

On November 9, 2020, Petitioner wrote a letter to the Clerk of the

Court and asked for an extension of time to file a response to the denial

of his habeas petition and a request for a certificate of appealability. ECF

No. 14. The Clerk of Court treated the letter as a motion for an extension

of time. See the docket entry for ECF No. 14, titled “Motion to Extend

Time to File Response by Joshua Martez Brown.” Before the Court could

respond to Petitioner’s letter, he filed a motion to alter or amend the

judgment. ECF No. 15.

Having reviewed the motion and supporting materials, the Motion

to Alter or Amend the Judgment (ECF No. 15) will be DENIED, and the

Motion to Extend (ECF No. 14) will be DENIED AS MOOT.

I. MOTION TO ALTER OR AMEND

a. The Legal Framework

Petitioner did not cite a federal or local rule as the basis for his

motion to alter or amend the judgment, but the title of his motion

suggests that he is bringing his motion under Federal Rule of Civil

Procedure 59(e) (“Motion to Alter or Amend a Judgment”). Rule 59(e)

merely states that “[a] motion to alter or amend a judgment must be filed

no later than 28 days after the entry of the judgment.” Although

Petitioner filed his motion to alter or amend the judgment thirty-three

days after the Court’s judgment, he filed his motion for an extension of

time within 28 days, and that motion remained pending when Petitioner

filed his motion to alter or amend the judgment. The Court, therefore,

will treat the motion to alter or amend the judgment as timely.

The rule “enables a party to request that a district court reconsider

a just-issued judgment.” Banister v. Davis, 140 S. Ct. 1698, 1703 (2020).

The Rule also “gives a district court the chance ‘to rectify its own mistakes

in the period immediately following’ its decision.” Id. (quoting White v.

New Hampshire Dept. of Employment Security, 455 U.S. 445, 450 (1982));

see also Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008)

(explaining that “[t]he purpose of Rule 59(e) is ‘to allow the district court

to correct its own errors, sparing the parties and appellate courts the

burden of unnecessary appellate proceedings’”) (quoting York v. Tate, 858

F.2d 322, 326 (6th Cir. 1988) (quoting Charles v. Daley, 799 F.2d 343, 348

(7th Cir. 1986)).

However, “[a] district court may grant a Rule 59(e) motion to alter

or amend judgment only if there is: ‘(1) a clear error of law; (2) newly

discovered evidence; (3) an intervening change in controlling law; or (4)

a need to prevent manifest injustice.’” Henderson v. Walled Lake Consol.

Sch., 469 F.3d 479, 496 (6th Cir. 2006) (quoting Intera Corp. v.

Henderson, 428 F.3d 605, 620 (6th Cir. 2005)). This standard is consistent

with the “palpable defect” standard in this district’s Local Rules. Id. A

motion for reconsideration is not intended to be a vehicle for losing

parties to repackage or re-present arguments that have previously been

rejected by courts. See E.D. Mich. LR 7.1(h)(3) (“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.”).

Additionally, “absent a legitimate excuse, an argument raised for the first

time in a motion for reconsideration at the district court generally will be

forfeited.” United States v. Huntington Nat. Bank, 574 F.3d 329, 331-32

(6th Cir. 2009) (referencing Scottsdale Ins. Co. v. Flowers, 513 F.3d 546,

533 (6th Cir. 2008)).

b. Application to Petitioner’s Case

Petitioner’s motion to alter or amend the judgment raises three

claims about his trial attorney. He contends that trial counsel was

ineffective for failing to (1) assert and preserve Petitioner’s right to a

speedy trial, (2) challenge the search of Petitioner’s cell phone following

his arrest, and (3) challenge the delay in Petitioner’s arraignment.

The current motion merely repackages arguments this Court has

previously addressed and rejected. For example, this Court’s previous

Order addressed Petitioner’s claims involving a right to a speedy trial

(ECF No. 12, PageID.3447), the admission of his cell phone into evidence

(ECF No. 12, PageID.3462), and allegations that his constitutional rights

were violated because he was not brought before a judge or magistrate

within forty-eight hours of his warrantless arrest (ECF No. 12,

PageID.3464). The Court rejected many of these claims on the basis that

they were procedurally defaulted because they were not objected to or

raised at trial. Petitioner now merely re-asserts these same issues, but

attempts to overcome the Court’s previous order that the claims were

procedurally defaulted by alleging that his rights were violated because

of his trial counsel’s failure to preserve these claims. ECF No. 15,

PageID.3477. But raising the same issues under a different label now

that the Court has rejected the previous arguments does not warrant

reconsideration. See Ford Motor Co. v. Greatdomains.Com, Inc., 177

F.Supp.2d 628, 632 (E.D. Mich. 2001) (“A motion for reconsideration

which presents the same issues already ruled upon by the court, either

expressly or by reasonable implication, will not be granted.”) (emphasis

added).

Even if the Court were to view these claims as new arguments, as

opposed to repackaged claims, Petitioner does not provide any legitimate

reason as to why these arguments were not raised in his original habeas

petition. United States v. Huntington Nat. Bank, 574 F.3d 329, 331-32

(6th Cir. 2009) (“[A]bsent a legitimate excuse, an argument raised for the

first time in a motion for reconsideration at the district court generally

will be forfeited.”). The Court is unable to ascertain any “legitimate

excuse” as to why these ineffective assistance of counsel claims were

raised for the first time in this motion to alter the judgment. Accordingly,

they do not warrant reconsideration. See Collins v. Nat. General Ins. Co.,

834 F.Supp.2d 632, 641 (E.D. Mich. 2011) (“[M]otions for reconsideration

under Local Rule 7.1(h) are aimed at reconsideration, not initial

consideration.”) (internal punctuation and citations omitted).

c. Strickland Standard

Furthermore, Petitioner is entitled to relief on an ineffective-

assistance-of-counsel claim only if he can show that “counsel’s

performance was deficient” and “that the deficient performance

prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984). The deficient-performance prong requires showing that “counsel’s

representation fell below an objective standard of reasonableness.” Id. at

688.

The “prejudice” prong “requires showing that counsel’s errors were

so serious as to deprive the defendant of a fair trial, a trial whose result

is reliable.” Id. at 687. Petitioner must demonstrate “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 694.

For the following reasons, the Court finds that Petitioner has failed to

satisfy the Strickland standard for his ineffective-assistance-of-counsel

claims.

i. Failure to Move for a Speedy Trial

Petitioner alleges that his trial attorney was ineffective for failing

to assert and preserve a claim that he was denied a speedy trial.

Petitioner alleges that his first trial resulted in a mistrial and that his

second trial occurred fourteen months later. Petitioner argues that, but

for defense counsel’s failure to assert his right to a speedy trial after the

initial mistrial, the result of his second trial or his subsequent appeal

likely would have been different. He maintains that he was prejudiced by

defense counsel’s error because the prosecution had additional time to

prepare and supplement its case during the delay before his second trial.

Mot., ECF No. 15, PageID.3477-3481.

The Michigan Court of Appeals opined on direct review that there

was no Sixth Amendment violation because Petitioner’s only argument

was a conclusory statement that the witnesses’ memories had faded.

People v. Brown, No. 320408, 2015 WL 6482928, at *2 (E.D. Mich. Oct.

27, 2015). Furthermore, the delay of fourteen months was not

uncommonly long, and some of the reasons for the delay can be attributed

to Petitioner. For example, there was a substitution of defense counsel

after the first trial, and the new defense attorney needed time to review

transcripts that had not yet been prepared. See 2/25/13 Special Pretrial

Tr., ECF No. 8-17.

Other reasons for the delay were incomplete discovery, see 5/24/13

Special Pretrial Tr., ECF No. 8-18, and a family matter that preoccupied

defense counsel shortly before the trial date, see 10/3/13 Special Pretrial

Tr., ECF No. 8-21. At the special pretrial conference on October 3, 2013,

Petitioner stated that he had no objection to another adjournment in the

trial or a new trial date about five weeks later. See 10/3/13 Special

Pretrial Tr., ECF No. 8-21, PageID.1466.

To summarize, there were legitimate reasons for adjourning the

second trial, Petitioner had no objection to the postponement of the trial,

and he was unable to show any prejudice to the defense as a result of the

delay. Therefore, defense counsel’s failure to assert Petitioner’s right to a

speedy trial did not amount to deficient performance, and her

performance did not prejudice Petitioner, for Petitioner appears to have

received credit for all the time that he spent in jail before his sentencing.

See 1/7/14 Sentencing Tr., ECF No. 8-35, PageID.2993; Judgment of

Sentence, ECF No. 8-36, PageID.3017.

ii. Failure to Object to the Search and Seizure

Petitioner’s second argument is that his trial attorney failed to

challenge a police officer’s search of the contents of his cell phone without

a warrant. Mot., ECF No. 15, PageID.3482-3483. The Court finds no

merit in this claim for two reasons. First, the record indicates that the

police did obtain a search warrant before attempting to search the

contents of the phone; and second, the police were unable to recover any

information from the phone. See 12/2/13 Trial Tr., ECF No. 8-30,

PageID.2656-2659; Brown, 2015 WL 6482928, at *7.

Defense counsel’s performance was not deficient because

Petitioner’s underlying Fourth Amendment claim lacks merit. Even if

defense counsel’s performance was deficient, the deficient performance

did not prejudice the defense because the police were unable to search

the contents of Petitioner’s phone.

iii. Delayed Arraignment

Petitioner’s third and final claim is that his trial attorney failed to

challenge the delay in Petitioner’s arraignment. Petitioner alleges that

he was arrested without a warrant on January 31, 2012, and that his

arraignment occurred five days later. He contends that he should have

been arraigned within 48 hours of his arrest, that he was interrogated

during the five-day delay in the arraignment, and that he was never

informed that he was being placed under arrest. Petitioner also

speculates that the police acquired additional information during the

delay and that the additional information resulted in charges being

brought against him. He maintains that defense counsel was ineffective

for failing to investigate and identify the additional information acquired

by the police during the delay. Mot., ECF No. 15, PageID.3484-3487.

The Michigan Court of Appeals rejected Petitioner’s underlying

claim about the delay in his arraignment on direct review. The Court of

Appeals stated that Petitioner’s claim lacked merit because he “fail[ed]

to substantiate that an unreasonable postarrest delay directly led to the

admission of any specific evidence that prejudiced his substantial rights.”

Brown, 2015 WL 6482928, at *8.

This Court agreed with the state court when reviewing Petitioner’s

underlying claim about the arraignment. The Court pointed out that,

although Petitioner apparently was interrogated during the delay in the

arraignment, there was no evidence that he confessed to the crime during

the interrogation or that the prosecution gained a tactical benefit from

the delay. For those reasons, trial counsel’s failure to challenge the delay

in the arraignment did not constitute deficient performance, and the

alleged deficiency did not prejudice Petitioner’s defense.

The claims underlying Petitioner’s arguments about trial counsel

lack merit, and an attorney’s “failure to raise a meritless claim does not

constitute ineffective assistance of counsel.” Tackett v. Trierweiler, 956

F.3d 358, 375 (6th Cir. 2020). Moreover, Petitioner has failed to show

some palpable defect or clear error law of law in the Court’s dispositive

opinion, and an altered or amended judgment is not needed to prevent a

manifest injustice. Therefore, Petitioner’s motion to alter or amend the

judgment is denied.

II. MOTION FOR AN EXTENSION OF TIME

In his remaining motion, Petitioner seeks a ninety-day extension of

time to file a motion for a certificate of appealability and a response to

the Court’s denial of his habeas petition. The Court, however, denied a

certificate of appealability in its dispositive opinion, and Petitioner has

already responded to the Court’s dispositive opinion. Therefore, the

motion for an extension of time is denied as moot. Petitioner may apply

to the Court of Appeals for a certificate of appealability.

CONCLUSION

For these reasons, the Court hereby DENIES Petitioner’s Motion

to Alter or Amend Judgment (ECF No. 15). The Court further DENIES

AS MOOT Petitioner’s Motion to Extend (ECF No. 14).

SO ORDERED.

Dated: June 21, 2021 s/Terrence G. Berg

TERRENCE G. BERG

UNITED STATES DISTRICT JUDGE