United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTION FOR
H. CLELAND, UNITED STATES DISTRICT JUDGE.
matter has come before the court on Petitioner Eddie Armail
Julian-Bey's objections to the court's order
dismissing his habeas petition. The petition challenged
Petitioner's 1976 state conviction for felony murder,
Mich. Comp. Laws § 750.316(1)(b). The court summarily
dismissed the petition on the basis that Petitioner's
claims lacked merit. (Dkt. #15.) Petitioner objects to the
court's order of dismissal on grounds that (1) the court
suspended the writ of habeas corpus, (2) the court's
order of dismissal is null and void, (3) the court
re-characterized his petition, and (4) the court failed (a)
to order Respondents to show cause why the writ should not be
granted and (b) to grant Petitioner a fact-finding hearing.
court construes Petitioner's objections as a motion for
reconsideration. To prevail on his motion, Petitioner
“must not only demonstrate a palpable defect by which
the Court and the parties and other persons entitled to be
heard on the motion have been misled but also show that
correcting the defect will result in a different disposition
of the case.” E.D. Mich. LR 7.1(h)(3); see also
Indah v. U.S. Sec. & Exch. Comm'n, 661 F.3d 914,
924 (6th Cir. 2011) (explaining that a motion for
reconsideration in the Eastern District of Michigan requires
“the movant [to] show both that there is a palpable
defect in the opinion and that correcting the defect will
result in a different disposition of the case”).
“A ‘palpable defect' is a defect which is
obvious, clear, unmistakable, manifest, or plain.”
Hawkins v. Genesys Health Systems, 704 F.Supp.2d
688, 709 (E.D. Mich. 2010) (Borman, J.) (quoting Ososki
v. St. Paul Surplus Lines Ins. Co., 162 F.Supp.2d 714,
718 (E.D. Mich. 2001) (Lawson, J.)).
contends that the court suspended the writ when it dismissed
his petition. The Constitution provides that “[t]he
Privilege of the Writ of Habeas Corpus shall not be
suspended, unless when in Cases of Rebellion or Invasion the
public Safety may require it.” U.S. Const. art. I,
§ 9, cl. 2. In this case, however, the court did not
prevent Petitioner from seeking habeas relief. Rather, the
court decided his petition on the merits in a reasoned
opinion. The court's determination that Petitioner's
claims were not supported by the law did not amount to a
suspension of the writ.
Petitioner alleges that the court's order of dismissal is
null and void because the court failed to transfer the
petition to the United States Court of Appeals for the Sixth
Circuit as a second or successive petition under 28 U.S.C.
§ 2244(b)(3)(A). Under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), a habeas petitioner who
seeks to file a second or successive petition must apply to
the appropriate federal court of appeals for permission to
file a second or successive petition. 28 U.S.C. §
2244(b)(3)(A). But Petitioner was convicted before §
2244(b)(3)(A) was enacted. Therefore, the proper inquiry was
whether Petitioner had abused the writ of habeas corpus by
filing another habeas petition after his first petition was
denied on the merits. See McCleskey v. Zant, 499
U.S. 467, 470 (1991) (a pre-AEDPA case); Cress v.
Palmer, 484 F.3d 844, 852 (6th Cir. 2007) (stating that
“when . . . the original petition was filed pre-AEDPA,
we must analyze whether the second or successive habeas
petition would have survived under the pre-AEDPA ‘abuse
of the writ' standard as set out in McCleskey v.
court briefly noted in its order of dismissal that Petitioner
had probably abused the writ because he could have raised his
claims in his prior petition and because he had not explained
his failure to do so. But ultimately the court dismissed the
petition on the merits. The Sixth Circuit Court of Appeals
took this approach in Dietz v. U.S. Parole
Comm'n, 260 F. App'x 763, 766 (6th Cir. 2008)
(“Despite our ability to dismiss Dietz's petition
on discretionary grounds [for abusing the writ], we choose to
decide this case on the merits.”). Therefore, the
court's order of dismissal is not null and void.
Furthermore, if Petitioner wanted the court of appeals to
determine whether this court had authority to address his
claims, he could have asked the court of appeals for
permission to file a second or successive petition before he
filed his habeas petition in this court.
third objection to the court's order of dismissal is that
the court recharacterized his claim by omitting from its
analysis any reference to the felony murder doctrine. The
court did not use the phrase “felony murder
doctrine” in its order of dismissal, but the court did
analyze Petitioner's claim that there is no crime of
felony murder in Michigan. In doing so, the court did not
re-characterize Petitioner's habeas claim.
final objection to the order of dismissal is that the court
(i) failed to order Respondents to show cause why the writ
should not be granted and (ii) refused to give Petitioner a
fact-finding hearing. As noted in the order of dismissal,
however, a district court may summarily dismiss a petition if
it plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief.
Crump v. Lafler, 657 F.3d 393, 396 n.2 (6th Cir.
2011). It was plain to the court that Petitioner's claims
lacked merit and that he was not entitled to relief.
Therefore, the court did not err by summarily dismissing the
petition without seeking argument from Respondents and
without first granting Petitioner a fact-finding hearing.
has failed to show that the court made a palpable defect when