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Bell v. Biven

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

April 23, 2019

ARTHUR LEE BELL, Plaintiff,
v.
JAMES BIVEN, MARVIN BUTLER and CITY OF DETROIT, Defendants.

          Nancy G. Edmunds Judge

          OPINION AND ORDER DENYING PLAINTIFF'S EMERGENCY MOTION TO REOPEN (DE 46) and DENYING PLAINTIFF'S MOTIONS FOR THE APPOINTMENT OF COUNSEL (DEs 49, 54, and 55)

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

         I. OPINION

         A. Bell's State Court Criminal Proceeding Provides a Backdrop to the Instant Federal Civil Rights Case.

         Arthur Lee Bell (#183004) is currently incarcerated at the MDOC's Muskegon Correctional Facility (MCF).[1] He is serving a life sentence imposed in state court on July 3, 1989. See No. 89-003844-01 (Recorders Court).

         A brief review of Bell's state court post-conviction process is helpful to the issues currently before this Court. Following Bell's sentencing, he filed an appeal, and, on April 23, 1990, the Court of Appeals remanded the case “for the purpose of conducting an evidentiary hearing on the assertion that the defendant was denied the effective assistance of counsel.” No. 120770 (Mich. App.) On September 2, 1992, the Court of Appeals determined that Bell “ha[d] failed to establish a claim of ineffective assistance of counsel.”[2] On October 22, 1992, Bell filed a delayed application for leave to appeal. (Id.) However, on March 29, 1993, the Michigan Supreme Court denied leave to appeal. People v. Bell, 442 Mich. 877, 500 N.W.2d 473 (1993) (Table).

         On March 12, 2009, Bell filed a motion for relief from judgment, which was denied on May 7, 2009. No. 292248 (Mich. App.). On September 3, 2009, the Court of Appeals denied Bell's application for leave to appeal, because Bell had “failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).” (Id.) On February 26, 2010, the Michigan Supreme Court denied the application for leave to appeal the September 3, 2009 order of the Court of Appeals for the same reason. People v. Bell, 485 Mich. 1101, 778 N.W.2d 225-26 (2010) (Mem.).

         B. Bell's Petition in this Court for a Writ of Habeas Corpus Was Unsuccessful.

         On November 14, 2006, Bell filed a petition for a writ of habeas corpus. Bell v. Howes, No. 2:06-cv-15086-AJT-RSW (E.D. Mich.) On December 28, 2010, Judge Tarnow entered an opinion and order conditionally granting Bell's petition for a writ of habeas corpus. Bell v. Howes, 757 F.Supp.2d 720, 722 (E.D. Mich. 2010). In sum, the Court concluded that “Bell's rights[, ] under Brady v. Maryland, were violated and that he received ineffective assistance of counsel and that the state court's findings to the contrary were an unreasonable application of Brady and Strickland v. Washington.” Bell, 757 F.Supp.2d at 738. However, on December 19, 2012, the Sixth Circuit vacated the district court's judgment conditionally granting Bell's petition for writ of habeas corpus and remanded for further proceedings consistent with the opinion. Bell v. Howes, 703 F.3d 848, 856 (6th Cir. 2012).

         An evidentiary hearing was scheduled for May 17, 2013; however, on that date, the Court conducted a telephonic status conference. On January 23, 2014, Judge Tarnow entered an opinion and order on remand denying the petition for a writ of habeas corpus and granting a certificate of appealability. Bell v. Howes, No. 2:06-CV-15086, 2014 WL 255886 (E.D. Mich. Jan. 23, 2014). The Court found “further factual development unwarranted.” Bell, 2014 WL 255886, at *2. Although the Court granted Bell's motion to amend his habeas petition, the Court found that “Bell's ineffective assistance of counsel claim added by amendment is procedurally defaulted” and that “he has not shown cause to excuse his procedural default.” Id. at *7-*8. In addition, the Court held that “the remaining claims are untimely.” Id. at *8. In granting the certificate of appealability, the Court noted its belief that “Bell remains incarcerated pursuant to an unjust conviction.” Id. at *7-*8.

         On June 29, 2017, the Sixth Circuit affirmed the district court's judgment. Bell v. Howes, 701 Fed.Appx. 408, 414 (6th Cir. 2017). Among other things, the Court noted that “the witness statements predicating Bell's new claim are only minimally persuasive evidence of his actual innocence[, ]” and that “both Matthews and Dickens's statements are entitled to little weight because they are unsworn.” Bell, 701 Fed.Appx. at 412. In mandates issued on August 25, 2017 and December 4, 2017, the Supreme Court of the United States denied Bell's petition for a writ of certiorari.

         C. Plaintiff's Instant Civil Rights Case, which Concerns His Arrest and State Court Conviction, Was Stayed and Administratively Closed in July 2013.[3]

         Meanwhile, on November 15, 2012 after this Court's conditional grant of habeas relief, but before the Sixth Circuit's order vacating that decision and remanding the case for further proceedings Plaintiff, via counsel, filed the instant fee-paid lawsuit against Detective James Biven, Detective Marvin Butler, and the City of Detroit, concerning Plaintiff's alleged October 4, 1988 and March 16, 1989 arrests and subsequent June 1989 conviction. (DE 1 ¶¶ 8, 12, 29; see also No. 89-003844-01 (Wayne County)). Plaintiff alleges false arrest based on 42 U.S.C. § 1983, false arrest based on state law, and a state law claim of intentional infliction of emotional distress (IIED). (DE 1 ¶¶ 3-36.) Moreover, Plaintiff appears to allege that Defendant City of Detroit is liable via respondeat superior and that it should indemnify the individual officer Defendants Biven and Butler. (DE 1 ¶¶ 37-40.)

         Defendants have filed answers. (DEs 4, 18.) On July 30, 2013, this case was stayed and administratively closed due to the City of Detroit's voluntary petition for protection under Chapter 9 of the Bankruptcy Code. (DE 25.)

         D. Plaintiff's First Motion to Re-open Was Denied Without Prejudice.

         On July 17, 2014, Plaintiff filed a pro se motion, which, in part, sought the appointment of counsel. It was denied on July 22, 2014. (DE 26.) At that point, the City of Detroit's bankruptcy petition was still pending. (Id.)

         It appears that a bankruptcy plan was confirmed in November 2014. In re City of Detroit, 524 B.R. 147, 159 n.1 (Bankr. E.D. Mich. Dec. 31, 2014). (See also DE 33.) Plaintiff's case remained dormant for approximately a year and a half. Then, Plaintiff filed several pro se motions:

• On June 1, 2016, Plaintiff filed a motion to re-open his petition for the appointment of counsel based on exceptional circumstances. (DE 28.)
• On August 15, 2016, Plaintiff filed an application for leave to file a motion for summary judgment. (DE 31.)
• On September 6, 2016, Plaintiff filed an expedited motion for Defendants to show cause, which was referred to me for hearing ...

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