United States District Court, E.D. Michigan, Southern Division
ORDER DENYING DEFENDANT'S: MOTIONS FOR
RECONSIDERATION OF (1) MOTION TO VACATE SENTENCE [DOC. #
925], (2) MOTION FOR DISCOVERY [DOC. # 926], (3) AND MOTION
FOR LEAVE [DOC. # 927]
VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE
April 15, 2011, a jury convicted Roy West
(“West”) of conspiracy to use interstate
facilities in the commission of a murder for hire, in
violation of 18 U.S.C. § 1958. West received a sentence
of life imprisonment without the possibility of parole. The
United States Court of Appeals for the Sixth Circuit affirmed
his conviction; his petition for writ of certiorari
West filed a pro se motion under 28 U.S.C. § 2255 to
vacate, set aside or correct his sentence. While his
§2255 motion was pending, West filed a motion for leave
pursuant to Rule 15 to file a pre-judgment amendment to the
pending §2255 Motion based on newly discovered evidence
of perjury. West also filed a motion for discovery, pursuant
to Rule 6 of the Rules Governing §2255 Proceedings,
seeking trial and appellate counsels' personal notes, the
pretrial investigator's notes, and medical records
relating to Leonard Day's (“Day”) death. The
Court denied all three motions.
now moves for the Court to reconsider its denial of each of
his motions pursuant to Eastern District of Michigan Local
fails to demonstrate a palpable defect, the correction of
which will result in a different disposition of his motions.
These motions for reconsideration are denied.
November 2005, the Federal Bureau of Investigation
(“FBI”) began wiretapping cellular phone
conversations of several individuals, including West (also
known as “Buck”) as part of a drug investigation.
From listening to various phone conversations between the
subjects, the FBI learned that Day, who also was known as
“Buck, ” had stolen about $100, 000 in cash,
$250, 000 in jewelry, a gun, and car keys from West while
staying at West's home in Ohio. With assistance from
Christopher Scott (“Scott”) and Marcus Freeman
(“Freeman”), West launched a search for Day. In
December 2005, Day was shot and killed while leaving a house
Freeman, and Scott were charged with and convicted of crimes
related to Day's death. The Sixth Circuit reversed
Freeman's conviction, holding that the trial court
erroneously admitted improper lay testimony of FBI Agent
Peter Lucas, a Government witness. United States v.
Freeman, 730 F.3d 590 (6th Cir. 2013). The trial court
vacated Scott's conviction following the Freeman
decision; Scott's motion for a new trial was granted.
West filed a motion under 28 U.S.C. § 2255 requesting
that the Court vacate, set, aside or correct his sentence.
West then filed a motion for leave pursuant to Rule 15 to
file a pre-judgment amendment to the pending §2255
Motion based on newly discovered evidence of perjury. West
also filed a motion for discovery, pursuant to Rule 6 of the
Rules Governing §2255 Proceedings, seeking trial and
appellate counsels' personal notes, the pretrial
investigator's notes, and medical records relating to
Day's death. The Court denied all three of West's
now moves pursuant to Local Rule 7.1(h)(3) for
reconsideration of this Court's decisions on all of his
motions. West says the Court erred by: (1) finding that
appellate counsel's failure to raise an issue of an
unpreserved jury instruction did not render her ineffective;
(2) concluding that trial counsel's failure to
investigate three potential witnesses or otherwise prepare
for trial did not result in prejudice within the meaning of
Strickland v. Washington, 466 U.S. 668, 691
(1984); (3) holding that trial counsel did seek a court
ruling concerning the impact of a wiretap authorization; (4)
finding that the proposed amendment to the §2255
petition, based on newly discovered evidence of perjury, did
not relate back to West's §2255 Motion and was thus
time-barred under Fed.R.Civ.P. 15(c)(2); and (5) applying the
wrong standard in denying his motion for discovery.
contends that these errors are palpable defects by which the
Court has been misled, that if corrected, will result in a
different disposition of his motions. The Court disagrees.
Standard of Review
Rule 7.1(h)(3) provides the Court's standard of review
for a motion for reconsideration:
“Generally, and without restricting the court's
discretion, the court will not grant motions for ...
reconsideration that merely present the same issues ruled
upon by the court, either expressly or by reasonable
implication. The movant 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). Palpable defects are those which are
“obvious, clear, unmistakable, manifest or
plain.” Mich. Dep't of Treasury v.
Michalec, 181 F.Supp.2d 731, 734 (E.D. Mich. 2002).
“It is an exception to the norm for the Court to grant
a motion for reconsideration.” Maiberger v. City of
Livonia, 724 F.Supp.2d 759, 780 (E.D. Mich. 2010).
“[A]bsent a significant error that changes the outcome
of a ruling on a ...