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United States v. Kilpatrick

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

May 22, 2019

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
KWAME M. KILPATRICK (D-1), Defendant-Petitioner.

          ORDER DENYING PETITIONER'S MOTION FOR RECONSIDERATION [648] AND DENYING PETITIONER'S MOTION TO DISQUALIFY JUDGE [649]

          Nancy G. Edmunds, United States District Judge.

         I. Background

         On March 19, 2019, the Court entered an Order Denying Defendant-Petitioner Kwame Kilpatrick's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Dkt. 645.) Judgment was entered on the same date. (Dkt. 646.) This matter is now before the Court on Defendant's motion for reconsideration, (dkt. 648), and Defendant's motion to disqualify Judge Nancy G. Edmunds under 28 U.S.C. § 455(a), (dkt. 649), which were both filed pro se on April 9, 2019. Defendant also filed a number of briefs and exhibits, (dkts. 650, 651, 652, 656, 658, 659), as well as an addendum to his motion for reconsideration, (dkt. 654).[1] The government opposes both motions. (Dkt. 655.) For the reasons set forth below, the Court DENIES Defendant's motions.

         II. Motion for Reconsideration

         a. Denial of § 2255 Motion

         Defendant argues that the Court should reconsider its order denying his § 2255 motion because Judge Edmunds[2] should have recused herself from this case due to an alleged friendship she had with his defense counsel, Jim Thomas (“Defense Counsel”). In support of his argument, Defendant recounts a brief conversation that allegedly took place on August 7, 2012, in his presence during a pretrial conference in chambers. Defendant asserts that Defense Counsel told Judge Edmunds, “Thank you for the lovely card for my wedding. My wife and I truly loved it, ” and Judge Edmunds responded with, “You are welcome, Jim.” (See dkt. 648, Pg ID 18311.) Defendant argues that due to this friendship, the Court was biased against him when considering his arguments regarding his right to conflict-free representation.

         Under Rule 7.1(h) of the Local Rules for the Eastern District of Michigan, a party may file a motion for reconsideration within fourteen days after a court issues an order to which the party objects. For the motion to succeed, the movant “must not only demonstrate a palpable defect by which the Court and the parties . . . have been misled but also show that correcting the defect will result in a different disposition of the case.” E.D. Mich. L. R. 7.1(h)(3). A court generally will not grant a motion for reconsideration that “merely present[s] the same issues ruled upon by the Court, either expressly or by reasonable implication.” Id.

         Defendant's motion for reconsideration under Local Rule 7.1(h) is untimely because it was filed more than fourteen days after this Court entered its order denying his § 2255 motion on March 19, 2019.[3] Because the government objects to the untimeliness of Defendant's motion, it must be denied on this basis alone. See United States v. Gaytan-Garza, 652 F.3d 680, 681 (6th Cir. 2011) (indicating that a court is required to enforce a time period established by rule if the government raises the issue); Cook v. United States, 246 Fed.Appx. 990, 994 (6th Cir. 2007) (unpublished) (noting that “district courts must observe the clear limits of time prescriptions when they are properly invoked”) (internal quotations and citation omitted). And while pro se filings are construed liberally, [4] this does not excuse the “fail[ure] to adhere to readily comprehended court deadlines.” See May v. Pike Lake State Park, 8 Fed.Appx. 507, 508 (6th Cir. 2001) (unpublished).

         And even if the Court construes Defendant's motion as a timely motion to amend or alter a judgment under Federal Rule of Civil Procedure 59(e), [5] Defendant is not entitled to relief. First, Defendant has not identified a palpable defect by which the Court and the parties have been misled. See E.D. Mich. L. R. 7.1(h)(3). Moreover, this is the first time Defendant makes his argument regarding the purported friendship between Judge Edmunds and Defense Counsel, even though he could and should have raised it in as early as August of 2012, when the conversation he now relays allegedly took place. Thus, the Court need not address it on a motion for reconsideration. See Sault Ste. Marie Tribe v. Engler, 146 F.3d 367, 374 (6th Cir. 1998) (noting that parties should not use motions for reconsideration “to raise arguments which could, and should, have been made before judgment issued”). And even if Defendant had raised his recusal claim in his § 2255 motion, this issue has been procedurally defaulted because Defendant did not raise it on direct appeal and he has not presented anything in his motion that would excuse his default. See Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003). Finally, to the extent Defendant reasserts his arguments regarding his right to conflict-free representation and a purported error in the jury instructions, the Court need not reconsider these arguments it previously considered and rejected. See Nagle Indus., Inc. v. Ford Motor Co., 175 F.R.D. 251, 255 (E.D. Mich. 1997) (noting that motions for reconsideration “are not the proper vehicle to relitigate issues previously considered”) (internal quotations and citation omitted). In sum, not only is Defendant's motion for reconsideration untimely, but also there is no need to address it on the merits.

         b. Denial of Certificate of Appealability

         In an “addendum” to his motion for reconsideration, Defendant argues that if the Court does not reconsider its denial of his § 2255 motion, it should alternatively reconsider its decision to deny him a certificate of appealability on the issue of whether the jury instructions in this case were erroneous in light of McDonnell v. United States, 136 S.Ct. 2355 (2016). (Dkt. 654.) In support of this argument, he cites to an order issued by the Sixth Circuit on March 27, 2019, granting a defendant who similarly raised a McDonnell claim in his § 2255 motion a certificate of appealability on the issues of whether “the district court's jury instructions regarding an ‘official act' were erroneous in light of McDonnell, ” and whether that “instructional error, if any, was harmless.”[6] See Dimora v. United States, No. 18-4260, dkt. 9-2 (6th Cir. Mar. 27, 2019). As noted above, Defendant's motion for reconsideration is untimely. Moreover, this Court previously addressed Defendant's McDonnell claim at length, finding it both procedurally defaulted and unavailing. See United States v. Kilpatrick, No. 10-20403, 2019 U.S. Dist. LEXIS 44570, at *4-14 (E.D. Mich. Mar. 19, 2019). Nonetheless, the Court will address the Sixth Circuit's recently issued order briefly.

         There are a number of distinguishing factors between this case and Dimora that support the Court's conclusion that Defendant's McDonnell argument does not similarly deserve encouragement to proceed beyond the certificate of appealability stage. First, the defendant in Dimora had preserved his McDonnell claim by raising its essence throughout his prosecution and on direct appeal, and thus the district court decided it on the merits. See Dimora v. United States, No. 1:10CR387, 2018 U.S. Dist. LEXIS 180870, at *21 (N.D. Ohio Oct. 22, 2018). In contrast, Defendant procedurally defaulted his McDonnell claim, and this Court only addressed it to show that even if it had not been defaulted, any alleged error was harmless. See Kilpatrick, 2019 U.S. Dist. LEXIS 44570, at *6. This distinction alone is a sufficient basis for denying Defendant a certificate of appealability on his McDonnell claim. Moreover, there were several instances in Dimora where the government had urged the jury to convict the defendant for conduct that did not fit McDonnell's definition of an “official act, ” but the district court found that those acts would have been disregarded by a rational juror applying its instructions. See Dimora, 2018 U.S. Dist. LEXIS 180870, at *81. Here, as this Court previously found, each of Defendant's convictions was based upon the approving, awarding, or withholding of a different Department of Water & Sewerage for the City of Detroit contract, which satisfies McDonnell's narrower definition of “official act.”[7] See Kilpatrick, 2019 U.S. Dist. LEXIS 44570, at *10-11. In sum, the Sixth Circuit's order granting the defendant in Dimora a certificate of appealability does not lead this Court to reconsider its denial of a certificate of appealability in this case.

         III. Motion to Disqualify Judge Edmunds

         Defendant also cites to the same conversation that allegedly took place on August 7, 2012, to argue that Judge Edmunds should be disqualified from his case under § 455(a). Section 455(a) requires any judge of the United States to “disqualify [her]self in any proceeding in which [her] impartiality might reasonably be questioned.” The Court first finds Defendant's motion moot. Mootness depends on “whether the relief sought would, if granted, make a difference to the legal interests of the parties.” See McPherson v. Mich. High Sch. Athletic Ass'n, 119 F.3d 453, 458 (6th Cir. 1997) (internal quotations and citation omitted). Defendant requests that Judge Edmunds be disqualified from deciding his § 2255 motion, but the Court has already denied that motion and judgment has been entered. See Kilpatrick, 2019 U.S. Dist. LEXIS 44570, at *55; dkt. 646. And while Defendant has filed a motion for reconsideration, the Court need not consider it for the reasons discussed above. Also, prisoners have no automatic right to appeal a district court's denial of relief under § 2255 unless a circuit justice or district court judge issues a certificate of appealability, 28 U.S.C. § 2253(c)(1)(B), ...


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