United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PETITIONER'S MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL (Dkt. #28), AND DENYING PETITIONER'S MOTION FOR RECONSIDERATION (Dkt. #29)
GEORGE CARAM STEEH, District Judge.
Petitioner Theodore Lee Lawton has appealed the Court's dispositive opinion and judgment denying his habeas corpus petition. Currently before this Court are petitioner's motion to proceed in forma pauperis on appeal and his motion for reconsideration. For the reasons that follow, the first motion is granted, and the latter motion is denied.
Petitioner commenced this action by filing a pro se habeas corpus petition under 28 U.S.C. § 2254. The habeas petition challenges petitioner's state convictions for armed robbery and possession of a firearm during the commission of a felony. The convictions arose from an armed robbery of a convenience store in Cedar Springs, Michigan, on April 22, 2004. Petitioner's first trial ended in a mistrial because the jury was unable to reach a unanimous verdict. Petitioner represented himself at his second trial, and on August 8, 2005, the jury found petitioner guilty, as charged, of armed robbery and felony firearm.
The trial court sentenced petitioner as a habitual offender to two years in prison for the felony firearm conviction and to a consecutive sentence of forty-six years, ten months to seventy-five years for the robbery conviction. The Michigan Court of Appeals affirmed petitioner's convictions in an unpublished decision, and on November 29, 2007, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the issues. See People v. Lawton, 480 Mich. 957; 741 N.W.2d 333 (2007). Petitioner also pursued state collateral remedies without success. In an amended habeas corpus petition filed on June 25, 2012, petitioner alleges that: (1) the trial court violated his right to a public trial; (2) the jury should not have been permitted to see two photographs obtained from petitioner's cell phone; (3) trial counsel was ineffective for failing to challenge the affidavit supporting a search warrant; (4) a detective suppressed evidence of a recorded telephone conversation between petitioner and an acquaintance and also destroyed part of the recording; (5) trial counsel was ineffective for failing to argue that offense variable seven of the Michigan sentencing guidelines is vague; and (6) appellate counsel was ineffective for failing to raise habeas claims two through five in the appeal of right. On January 28, 2015, the Court issued a dispositive opinion in which the Court denied the habeas corpus petition and declined to issue a certificate of appealability.
II. The Motion to Proceed In Forma Pauperis
In his motion to proceed in forma pauperis on appeal, petitioner alleges that he is indigent, that he has no asserts, and that his prison job pays only $12.42 a month, which is barely enough to buy the personal hygiene items that he needs. Attached to petitioner's motion is a certified statement regarding petitioner's trust fund account at the prison where he is confined. The statement indicates that, for the reported period, petitioner had monthly deposits averaging $21.87, an average monthly balance of $6.00, and a spendable account balance of $.09 as of February 6, 2015. Because the certified statement supports petitioner's allegation of indigence, the Court GRANTS his motion to proceed in forma pauperis on appeal (Dkt. #28).
III. The Motion for Reconsideration
In his motion for reconsideration, petitioner asks the Court to reconsider its decision to deny a certificate of appealability. A motion for reconsideration must be filed within fourteen days of the judgment or order in dispute. LR 7.1(h)(1) (E. D. Mich. July 1, 2013). On January 28, 2015, the Court entered its dispositive opinion and judgment on the docket. Petitioner signed and dated his motion for reconsideration more than fourteen days later on February 24, 2015. Therefore, his motion is untimely. Even if the motion were timely, the Court has determined for the reasons given below that reconsideration is unwarranted.
A. Legal Standards
To prevail on his motion for reconsideration, petitioner must show that there is a palpable defect in the Court's dispositive opinion and that correcting the defect will result in a different disposition of the case. LR 7.1(h)(3) (E.D. Mich. July 1, 2013); Indah v. United States S.E.C., 661 F.3d 914, 924 (6th Cir. 2011). "[M]erely presenting the same issues that the court previously ruled on is not an acceptable ground for reconsideration." Indah, 661 F.3d at 924.
At issue here is the Court's decision not to grant a certificate of appealability on habeas claims one, two, four, and five. A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003).
B. The Right to a Public Trial
Habeas claim one alleges that the trial court violated petitioner's right to a public trial by excluding the public from voir dire proceedings during his first trial to make room for prospective jurors. Although the Sixth Amendment to the United States Constitution guarantees the accused the right to a public trial, including the voir dire of prospective jurors, Presley v. George, 558 U.S. 209, 211-13 (2010), the Court found no merit in ...