United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE MOTION TO REINSTATE THE
PETITION FOR WRIT OF HABEAS CORPUS, THE
MOTION FOR DISCOVERY, AND THE MOTION FOR THE APPOINTMENT OF
PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE
April 18, 2016, this Court summarily dismissed
petitioner's habeas application without prejudice on the
ground that petitioner failed to exhaust several of his
claims with the state courts. The Court also denied
petitioner a certificate of appealability or leave to appeal
in forma pauperis. Scott v. Woods, No.
2:15-CV-13095, 2016 WL 1554934 (E.D. Mich. Apr. 18, 2016).
has now sent a letter to the Court, in which he moves this
Court to review the issues that he filed in his habeas
petition. The Court construes petitioner's letter as a
motion to reinstate the petition for writ of habeas corpus.
Petitioner has also filed motions for discovery and for the
appointment of counsel. For the reasons that follow, the
motions are DENIED.
motion to reinstate the petition, petitioner asks this Court
to review the issues raised in his petition. Petitioner
further claims that exceptional circumstances exist that
would justify the adjudication of his petition in spite of
the fact that petitioner acknowledges that his claims are
Court is without the power to reinstate petitioner's
original habeas petition that had previously been filed
before this Court. This Court did not retain jurisdiction
over petitioner's first habeas petition which was
dismissed without prejudice based upon petitioner's
failure to exhaust his claims with the state courts, in the
absence of any express retention of jurisdiction over the
first petition. See Lefkowitz v. Fair, 816 F.2d 17,
21 (1st Cir. 1987). Because this Court did not expressly
retain jurisdiction over the first petition, this Court will
deny petitioner's motion to reinstate the original habeas
petition to the Court's active docket. See Wilson v.
Warren, 06-CV-15508; 2008 WL 5273633, p. 1 (E.D. Mich.
Dec. 17, 2008). The denial of the motion is without prejudice
to petitioner filing a petition for writ of habeas corpus
with the federal district court under a new case number.
to the extent that petitioner's motion could be construed
as a motion for reconsideration of the Court's opinion
and order of summary dismissal based upon petitioner's
failure to exhaust his claims, he would not be entitled to
Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a
motion for reconsideration. In order for a court to grant a
motion for reconsideration, the movant must show (1) a
palpable defect; (2) that misled the court and the parties;
and (3) that correcting the defect will result in a different
disposition of the case. Sigma Financial Corp. v.
American Intern. Specialty Lines Ins. Co., 200 F.Supp.2d
710, 715 (E.D. Mich. 2002). A ‘palpable defect' is
a defect which is considered “obvious, clear,
unmistakable, manifest, or plain.” Id. As a
general rule, a court will not grant a motion for rehearing
or reconsideration that merely presents the same issues ruled
upon by the court, either expressly or by reasonable
motion for reconsideration will be denied. Petitioner is
merely presenting issues which were already ruled upon by
this Court, either expressly or by reasonable implication,
when the Court summarily dismissed petitioner's habeas
application based on petitioner's failure to exhaust his
claims with the state courts. See Hence v. Smith, 49
F.Supp.2d 547, 553 (E.D. Mich. 1999).
Court denies petitioner's motion for discovery because
several of his claims have not yet been exhausted with the
state courts. See Calderon v. United States Dist.
Ct., 120 F.3d 927, 928 (9th Cir. 1997)(until petitioner
filed federal habeas corpus petition on exhausted claim, he
could not avail himself of discovery); Calderon v. U.S.
Dist. Court for the Northern Dist. of California, 98
F.3d 1102, 1106 (9th Cir. 1996)(“any right to federal
discovery presupposes the presentation of an unexhausted
federal claim, because a federal habeas petitioner is
required to exhaust available state remedies as to each of
the grounds raised in the petition”).
Court will also deny petitioner's motion for the
appointment of counsel. There is no constitutional right to
counsel in habeas proceedings. Cobas v. Burgess, 306
F.3d 441, 444 (6th Cir. 2002). The decision to appoint
counsel for a federal habeas petitioner is within the
discretion of the court and is required only where the
interests of justice or due process so require. Mira v.
Marshall, 806 F.2d 636, 638 (6th Cir. 1986). In light of
the fact that petitioner has failed to exhaust his state
court remedies, he is not entitled to the appointment of
counsel to assist him with his habeas petition. See e.g.
Dupree v. Jones, 281 F. App'x. 559, 561 (7th Cir.
for the foregoing reasons, IT IS ORDERED that the motion to
reopen the petition for writ of habeas corpus [Dkt. # 17] is
DENIED without prejudice to petitioner filing a petition for
writ of habeas corpus with the federal district court under a
new case number. The motion for ...