United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION FOR RECONSIDERATION [Dkt.
J. Tarnow Senior United States District Judge
David Albers, a state prisoner, filed this case under 28
U.S.C. § 2254, challenging his May 27, 2009, Macomb
Circuit Court conviction for solicitation to murder. On June
7, 2016, the Court dismissed the petition on the grounds that
the petition was filed after expiration of the one-year
statute of limitations. Presently before the Court is
Petitioner's motion for reconsideration.
Rule 7.1(h) 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). The movant must not
only demonstrate a palpable defect by which the court and the
parties have been misled but also show that a different
disposition of the case must result from a correction
thereof. A palpable defect is a defect that is obvious,
clear, unmistakable, manifest, or plain. Witzke v.
Hiller, 972 F.Supp. 426, 427 (E.D. Mich. 1997).
present case, the arguments raised by Petitioner in his
motion for reconsideration were already rejected by the Court
in its opinion dismissing the petition either explicitly or
by implication. Petitioner asserts that his petition is not
subject to the statute of limitations because he is actually
innocent. As noted in the Court's opinion dismissing the
petition, a credible claim of actual innocence may equitably
toll the one-year statute of limitations. McQuiggin v.
Perkins, U.S., 133 S.Ct. 1924, 1928, 185 L.Ed.2d 1019
(2013); Souter v. Jones, 395 F.3d 577, 588-90 (6th
Cir. 2005). But to establish actual innocence, a habeas
petitioner “must demonstrate that, in light of all the
evidence, it is more likely than not that no reasonable juror
would have convicted him.” Bousley v. United
States, 523 U.S. 614, 623 (1998) (quoting Schlup v.
Delo, 513 U.S. 298, 327-28 (1995)); see also House
v. Bell, 547 U.S. 518, 537-39 (2006). A valid claim of
actual innocence requires a petitioner “to support his
allegations of constitutional error with new reliable
evidence - whether it be exculpatory scientific evidence,
trustworthy eyewitness account, or critical physical evidence
- that was not presented at trial.” Schlup,
513 U.S. at 324. Furthermore, actual innocence means
“factual innocence, not mere legal
insufficiency.” Bousley, 523 U.S. at 623.
claim of actual innocence does not differ from what he
presented to the state courts in his entrapment hearing.
Petitioner claims that Detective Brian Shock-the undercover
officer who posed as a hit-man-entrapped him and threatened
to kill him. He also asserts that Det. Shock's
supervisor, Sgt. Jerome Urbaniak, committed perjury at the
entrapment hearing. Petitioner's motion and attached
exhibits, however, proffer no new evidence in support of this
state trial court made the following factual findings after
holding an evidentiary hearing on Petitioner's claim:
The Roseville police department was proveded with information
that the Defendant was interested in finding someone to kill
his ex-wife. They conducted an investigation as the Court
believes would be their obligation upon hearing of that
information. The meeting that occurred on May 28th as set
forth in the transcript, the Court believes clearly indicates
the Defendant's intention to hire the undercover officer
Detective Shock to kill his wife.
The Court does not believe that Detective Shock either by way
of the transcript that the Court read or upon hearing
Detective Shock's testimony engaged in any impermissible
conduct that would induce an otherwise law abiding citizen to
commit this crime.
Detecitve Shock simply initiated the phone call and then
reacted to defendant's clear intention to find someone to
murder his wife.
In addition, the second leg that might result in an
entrapment defense the police engaged in conduct so
reprehensible that it cannot be tolerated by the Court.
This court finds a complete absence of any reprehensible
conduct. In fact, it would be the Court's opinion that
the Roseville police department acted admirably and
efficiently in investigating a possible crime and arguably
ultimately stopped that crime from being committed.
Dkt. 30-10, at 11-12.
findings of the state court are entitled to a presumption of
correctness, and Petitioner has failed to proffer clear and
convincing evidence that they are incorrect. 28 U.S.C. §
2254(e)(1). Indeed, the Court review of the entrapment
hearing transcripts supports that state court's
conclusion that Petitioner was not entrapped. Because
Petitioner is merely presenting issues which were already
ruled upon by the court, either expressly or by reasonable
implication, the motion for reconsideration is
DENIED. See Hence v. Smith, 49
F.Supp.2d 547, 553 (E.D. Mich. 1999).