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Gilmore v. Harry

United States District Court, E.D. Michigan, Southern Division

November 1, 2016

GEARY GILMORE, Petitioner,
v.
SHIRLEE HARRY Respondent.

          ORDER GRANTING PETITIONER'S MOTION TO AMEND [Dkt. 62] AND DENYING PETITIONER'S MOTION TO MAKE ADDITIONAL FINDINGS [Dkt. 58]

          Honorable Nancy G. Edmunds United States District Judge.

         This is a habeas corpus case filed under 28 U.S.C. § 2254 by a state prisoner who was convicted in 1974 along with two other men of two counts of first-degree murder. The three defendants were accused of murdering two young boys after their ransom demands were not met. The Court denied the petition on March 30, 2016. Presently before the Court is Petitioner's motion to make additional findings under Rule of Civil Procedure 52(b), in which he seeks reconsideration of the Court's decision denying him habeas relief.[1]

         Petitioner primarily complains that Respondent failed to file the portions of the trial record necessary for a fair review of his claims. He argues the Court erroneously relied on a statement of facts contained in the state trial court's order denying his motion for relief from judgment. Petitioner notes that the statement of facts was adopted by the trial court from purportedly biased statement of facts appearing in an earlier pleading filed by the prosecutor.

         In response to the motion, Respondent filed what appears to be a complete copy of the record from Petitioner's 1974 jury trial, which includes 40 transcript volumes, as well as a response to Petitioner's claims. See Dkts. 63 and 64. Upon review of the motion, response, and the record of the trial court proceedings, the Court finds that it was not misled by the trial court's statement of facts, 0and it correctly determined that Petitioner's claims lack merit. The motion to make additional findings will therefore be denied.

         I. Standard of Review

         Federal Rule of Civil Procedure 52(b) provides that “[o]n a party's motion . . . the court may amend its findings- or make additional findings- and may amend the judgment accordingly. The motion may accompany a motion for a new trial under Rule 59.” Fed.R.Civ.P. 52(b). The Court construes Petitioner's pro se pleading as also seeking an order altering or amending the Court's decision denying his petition pursuant to Rule 59(e). A motion under this rule may be granted only if there is a clear error of law, newly discovered evidence, an intervening change in controlling law, or to prevent manifest injustice. GenCorp., Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999). The Sixth Circuit has “repeatedly held that a Rule 59(e) motion ‘does not permit parties to . . . re-argue a case' and ‘cannot be used to present new arguments that could have been raised prior to judgment.'” Schellenberg v. Twp. of Bingham, 436 F.App'x 587, 598 (6th Cir. 2011) (quoting Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008)).

         II. Discussion

         A. Failure to File Trial Record

         Petitioner first asserts that Respondent failed to comply with Rule 5(d)(1) of the Rules Governing Section 2254 Cases when it failed to file the trial transcripts along with its initial responsive pleading to the petition. He notes that the Court relied upon a statement of facts contained in the trial court's order denying Petitioner's motion for relief from judgment. Petitioner asserts that the trial court's statement of facts constitutes an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2) because it adopted a purportedly inaccurate statement of facts submitted by the prosecutor in an earlier filed pleading.

         In § 2254 proceedings, the state must indicate in its responsive pleading what transcripts are available and what proceedings have been recorded but not transcribed. See Rule 5(c) of the Rules Governing Section 2254. If the state fails to submit the entire record, any decision by the district court on the merits may be subject to challenge. See, e.g., Nash v. Eberlin, 437 F.3d 519, 523-34, 2006 FED App. 0057P (6th Cir. 2006) (vacating judgment where district court did not have complete state court transcript and review of the additional evidence was required).

         When Respondent filed its initial response to the petition, it filed portions of the state appellate record, as well as some of the pleadings filed in the state courts during state post-conviction review, but it did not file any of the trial transcripts. See Dkt. 47. Most of Petitioner's claims, not surprisingly, concern matters contained in the trial transcripts. It was therefore incumbent on Respondent to file the portions of the state court record pertaining to Petitioner's claims.

         Nevertheless, the error in failing to file the transcripts has now been cured because Respondent has filed what appears to be the complete trial record. See Dkt. 64. The Court has now had an opportunity to review Petitioner's claims in light of the trial record. Though the trial court's statement of facts does seem to be a copy of a statement of facts submitted by the prosecutor, see Dkt. 47-2, after review of the trial record, the Court concludes that it accurately summarized the trial proceedings, and it does not constitute an unreasonable determination of the facts contrary to § 2254(d)(2).

         The Court finds that the failure to file the trial transcripts does not provide a basis for relief because, for the reasons that follow, none of Petitioner's ...


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