United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTION FOR
J. MICHELSON, UNITED STATES DISTRICT JUDGE.
Lee Smith asks the Court to reconsider its order denying his
motion to alter or amend the judgment in this case. As the
motion is untimely and Smith has not demonstrated any
palpable defect by which the Court and the parties have been
misled, the motion for reconsideration will be denied.
pled no contest in 2008 to two counts of kidnapping and six
counts of criminal sexual conduct in the first degree.
appealed his convictions and sentence and also pursued other
post-conviction remedies in state court, all without success.
March 16, 2010, Smith filed a habeas corpus petition in this
court. (ECF No. 1.) The case was stayed and re-opened twice
to allow Smith to exhaust his state court remedies.
Ultimately, now retired District Judge John Corbett
O'Meara denied Smith's habeas petition on the merits.
(ECF No. 122.) Smith appealed the decision, but the United
States Court of Appeals for the Sixth Circuit denied
Smith's motion for a certificate of appealability. (ECF
filed several post-judgment motions in this Court. One raised
a new claim that the judgment of sentence was illegal. (ECF
No. 133.) Smith alleged that (1) his no-contest plea was
involuntary because the trial court failed to inform him that
he would be subject to lifetime electronic monitoring and (2)
the state sentencing guidelines were inaccurately scored.
Another motion sought permission to file an affidavit. (ECF
No. 150.) In an opinion and order entered on March 19, 2018,
Judge O'Meara rejected Smith's claims about his
sentence, but granted Smith's request to file an
affidavit. (ECF No. 158.)
then filed a motion to alter or amend this decision. (ECF No.
161.) He argued that, before he pleaded no contest, the state
trial court did not inform him that he would be subject to
lifetime electronic monitoring following his release from
prison. Smith believed this violated Michigan Court Rule
6.302 and his right to due process and also rendered his
no-contest plea involuntary. Smith further alleged that the
State never addressed this issue and Judge O'Meara failed
to acknowledge the State's failure to address the issue
it. Smith also criticized Judge O'Meara for not
addressing certain affidavits that Smith claimed to have
filed. According to Smith, the affidavits indicated that the
victims had recanted their testimony and that Sergeant David
Cobb of the Detroit Police Department had forced the women to
falsify the kidnaping and rape allegations.
December 11, 2018, following the reassignment of the case,
this Court denied Smith's motion to alter or amend the
judgment. (ECF No. 163.) The court found that Judge
O'Meara did adjudicate the sentencing issue in his March
19, 2018 ruling. He concluded that the failure to advise
Smith of the lifetime electronic monitoring requirement did
not render Smith's plea involuntary, unknowing, or a
violation of due process or the eighth amendment.
(Id.) The court also found that the only affidavits
submitted by Smith were his own and they said nothing about
the victims recanting their testimony. (Id.) So the
Court declined to grant relief on Smith's claim regarding
Sergeant Cobb and recanting affidavits. (Id.)
now seeks reconsideration of the Court's order denying
his motion to alter or amend the judgment. (ECF No. 165.)
Attached to the motion are apparent statements and affidavits
that Smith alleges were part of the record and ignored by the
Court. (ECF No. 165, PageID.2186- 2203.) Smith contends that
the documents are proof that he did not rape the victims.
Smith urges the Court to review the documents and grant him a
trial on the original charges. Smith is not entitled to the
the motion is untimely. “A motion for rehearing or
reconsideration must be filed within 14 days after entry of
the judgment or order.” E.D. Mich. LR 7.1(h)(1). The
Court issued its order denying Smith's motion to alter or
amend the judgment on December 11, 2018. And while Smith did
not date his subsequent motion for reconsideration, it is
postmarked January 10, 2019, and was filed with the Clerk of
Court on February 7, 2019. (ECF No. 165.)
to warrant reconsideration, the moving party must
“demonstrate a palpable defect by which the court and
the parties and other persons entitled to be heard on the
motion have been misled” and then “show that
correcting the defect will result in a different disposition
of the case.” E.D. Mich. LR 7.1(h)(3). Smith has not
met this burden.
has submitted various documents that he alleges support his
claim of actual innocence. In an
“affidavit/letter” dated August 2, 2018, Barbara
Dunn states that she and the alleged victims had consensual
sex with Smith in January of 2008. (ECF No. 165,
PageID.2186.) Dunn further alleges that, during the incident
in January of 2008, an armed man wearing a police uniform
with the name “David Cobb” on it arrived on the
scene and put a gun to Smith's head. (Id.) The
armed man then remarked to the alleged victims that their
plan had come together. (Id.) The man also made it
appear like he had caught Smith raping the women.
(Id.) Dunn concludes that the alleged victims were