# Brown v. Smith

> District Court, E.D. Michigan · June 21, 2021

URL: https://www.frixlaw.com/law-library/cases/10216605

## Case

- **Court:** District Court, E.D. Michigan
- **Decided:** June 21, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10216605

## How later opinions describe it (automated extraction)

- 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’”
- 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’”

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10216605. Public record. Not legal advice.