Opinion

Wood v. Brown

Court
District Court, E.D. Michigan
Filed
Aug 5, 2021
Cited by
0 cases
Authority
More cited than 23.4%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SAMUEL LAWRENCE WOOD,

Petitioner, Civil No. 2:20-CV-12576

Honorable George Caram Steeh

United States District Judge

v.

MIKE BROWN,

Respondent.

___________________________/

OPINION AND ORDER DENYING THE MOTION FOR

RECONSIDERATION (ECF No. 20) AND DECLINING TO ISSUE A

CERTIFICATE OF APPEALABILITY

Petitioner filed a motion for reconsideration in the above matter. For

the reasons that follow, the motion is DENIED.

Petitioner in a consolidated petition challenged his state court

conviction for two counts of second-degree murder, the Federal Bureau of

Prisons’ (“BOP”) failure to give him proper sentencing credit by refusing to

nunc pro tunc designate the state prison as the place of confinement on his

federal convictions out of the United States District Court for the Eastern

District of Michigan, and the judge’s failure to apply § 5G1.3 of the United

States Sentencing Guidelines to grant a downward departure on

petitioner’s federal sentence based on his sentence on his state court

conviction for second-degree murder.

This Court dismissed the portion of the petition challenging the

second-degree murder conviction without prejudice, because petitioner

failed to show that he had exhausted his state court remedies with respect

to those claims. The Court ruled that any challenge by petitioner to his

federal conviction needed to be brought as a 28 U.S.C. § 2255 before the

federal judge that sentenced petitioner. The Court further concluded that

jurisdiction over the portion of the petition addressing the BOP’s failure to

retroactively designate state prison as the place of confinement for

petitioner’s federal conviction lay in the United States District Court for the

Western District of Michigan and ordered the remainder of the petition

transferred to that district.

Petitioner has now filed a motion for reconsideration. Petitioner

challenges this Court’s ruling that petitioner had not exhausted his claims

challenging his state court convictions.

U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (g) allows a party to file a motion

for reconsideration. However, 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. Ford Motor Co. v.

Greatdomains.com, Inc., 177 F. Supp. 2d 628, 632 (E.D. Mich. 2001). 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

show that correcting the defect will lead to a different disposition of the

case. See DirecTV, Inc. v. Karpinsky, 274 F. Supp. 2d 918, 921 (E.D. Mich.

2003).

Petitioner in his motion for reconsideration argues that he did exhaust

his claims because he filed a post-conviction motion for relief from

judgment with the Genesee County Circuit Court, which the trial judge

denied. Petitioner has attached the motion for relief from judgment and the

trial judge’s order denying the motion to his motion for reconsideration.

(ECF No. 20, PageID. 1370-95).

The problem with petitioner’s argument is that there is no indication in

the motion for reconsideration that petitioner appealed the denial of the

motion for relief from judgment to the Michigan Court of Appeals and the

Michigan Supreme Court.

In order to properly exhaust a claim on state post-conviction review, a

habeas petitioner is required to present that claim in his or her post-

conviction motion before the state trial court and in his or her post-

conviction appeal to the state’s appellate courts. See Smith v. Gaetz, 565

F.3d 346, 352 (7th Cir. 2009). Under Michigan law, petitioner had the

ability to appeal the denial of the motion for relief from judgment to the

Michigan appellate courts. See Nasr v. Stegall, 978 F. Supp. 714, 717

(E.D. Mich. 1997). Where a habeas petitioner has an opportunity under

state law to file an appeal following the state trial court’s denial of his or her

state post-conviction motion, the petitioner has yet to exhaust his or her

state court remedies. See Cox v. Cardwell, 464 F. 2d 639, 644-45 (6th Cir.

1972). Petitioner was required to appeal the denial of his post-conviction

motion to the Michigan Court of Appeals and the Michigan Supreme Court

in order to properly exhaust his claims. See e.g. Mohn v. Bock, 208 F.

Supp. 2d 796, 800 (E.D. Mich. 2002). A criminal defendant in Michigan has

six months from the denial of a motion for relief from judgment by the trial

court to file an application for leave to appeal with the Michigan Court of

Appeals. M.C.R. 6.509 (A); M.C.R. 7.205(G)(3). The judge denied

petitioner’s motion for relief from judgment on April 1, 2016. Petitioner had

until October 1, 2016 to file an application for leave to appeal to the

Michigan Court of Appeals. Petitioner does not allege in his motion that he

appealed the denial of his motion to the Michigan appellate courts. This

Court also searched Westlawnext and there is no indication that petitioner

filed any post-conviction appeals in this or any other case. 1

The Court denies the motion for reconsideration because petitioner

failed to show that this Court erred in ruling that petitioner had failed to

exhaust his claims with respect to his state court convictions.

A certificate of appealability is required to appeal the denial of a

motion for reconsideration in a habeas case. See e.g. Amr v. U.S., 280 F.

App’x. 480, 486 (6th Cir. 2008). This Court will deny petitioner a certificate

of appealability, because jurists of reason would not find this Court’s

resolution of petitioner’s motion for reconsideration to be debatable.

IT IS ORDERED that the motion for reconsideration (ECF No. 20) is

DENIED. The Court declines to issue a certificate of appealability.

Dated: August 5, 2021

s/George Caram Steeh

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

1 See www.1.next.westlaw.com. Public records and government documents, including

those available from reliable sources on the Internet, are subject to judicial notice. See

Daniel v. Hagel, 17 F. Supp. 3d 680, 681, n. 1 (E.D. Mich. 2014); United States ex. rel.

Dingle v. BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003).

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

August 5, 2021, by electronic and/or ordinary mail and also on

Samuel Wood #709359, Kinross Correctional Facility,

4533 W. Industrial Park Drive, Kincheloe, MI 49788.

s/Brianna Sauve

Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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