United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION FOR RECONSIDERATION AND MOTION
FOR EVIDENTIARY HEARING
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
Edwin A. Smith (“Petitioner”) is currently a
state prisoner at Kinross Correctional Facility in Kincheloe,
Michigan. This Court previously denied Petitioner's
pro se habeas petition challenging his conviction
for first-degree criminal sexual conduct in violation of
Mich. Comp. Law § 750.520(1)(a). ECF No. 28 (Jan. 31,
2019 Order). Petitioner now asks the Court to reconsider its
previous order denying habeas relief and again requests an
evidentiary hearing. ECF Nos. 32, 33.
urges that, because he has produced evidence rebutting the
Michigan Court of Appeals' findings, this Court should
not apply the highly deferential standard for evaluating
state-court rulings mandated by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”) and Supreme
Court precedent. See ECF No. 32 PageID.1886-87
(Pet.'s Br.). Cf. 28 U.S.C. § 2254(d);
Renico v. Lett, 559 U.S. 766, 773 (2010). He also
seeks an evidentiary hearing to examine both the results of
DNA analysis, which he considers exculpatory, and certain
alleged misconduct by the prosecutor.
factual and procedural background of this matter are set
forth in detail in this Court's previous Order.
See ECF No. 28 PageID.1846- 51. On January 31, 2019,
the Court issued an Order denying Petitioner's writ of
habeas corpus, motion to reconsider, and motion to submit his
habeas petition for the Court's consideration.
See ECF No. 28. In response, Petitioner filed a
motion for extension of time to file a motion for
reconsideration, which this Court granted. ECF No. 31.
Petitioner then filed his motions for reconsideration and for
an evidentiary hearing on March 31, 2019. Those motions are
now before the Court.
for reconsideration are governed by Local Rule 7.1(h)(3).
That rule provides that the Court “will not grant
motions for rehearing or reconsideration that merely present
the same issues ruled upon by the Court, either expressly or
by reasonable implication.” Id. To warrant
reconsideration, “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.” Id.
palpable defect is a defect which is obvious, clear,
unmistakable, manifest, or plain.” Am. Pie Pizz,
Inc. v. Holton Holdings, Inc., No. 2:10-cv-13106, 2011
WL 652834, at *1 (E.D. Mich. Feb. 14, 2011) (quoting
Ososki v. St. Paul Surplus Lines Ins. Co., 162
F.Supp.2d 714, 718 (E.D. Mich. 2001)). “[A]bsent a
significant error that changes the outcome of a ruling on a
motion, the Court will not provide a party with an
opportunity to relitigate issues already decided.”
Maiberger v. City of Livonia, 724 F.Supp.2d 759, 780
(E.D. Mich. 2010).
are three generally recognized grounds upon which a party may
properly seek reconsideration of a court's previous
ruling: (1) a clear error of law; (2) newly discovered
evidence that was not previously available to the parties; or
(3) an intervening change in the controlling law.
Eggelston v. Nexteer Auto. Corp., 2018 WL 2117754,
at *2 (E.D. Mich. May 8, 2018). “A motion for
reconsideration should not be used liberally to get a second
bite at the apple, but should be used sparingly to correct
actual defects in the court's opinion.” Estate
of Fahner ex rel. Fahner v. Cnty. of Wayne, No.
2:08-cv-14344, 2012 WL 2087070, at *1 (E.D. Mich. June 8,
Alleged misrepresentation by Michigan Court of
first asks this Court to reconsider its previous Order on the
basis that the Court should not have deferred to factual
findings the Michigan Court of Appeals made based on the
state trial record. ECF No. 32 PageID.1880. Petitioner avers
he has presented clear and convincing evidence that rebuts
factual findings by the Michigan Court of Appeals. ECF No. 32
PageID.1880-81. More specifically, Petitioner purports that
the Michigan Court of Appeals misstated portions of the trial
record relevant to whether the orange sex toy at issue in the
underlying case had already been, or would be, sent to the
state crime lab for testing before his criminal trial. ECF
No. 32 PageID.1880-81.
discussed in this Court's January 31, 2019 Order, a
district court may not grant a habeas petition with respect
to any claim adjudicated on the merits in state court unless
that adjudication runs contrary to, or involves an
unreasonable application of, United States Supreme Court
precedent, or incorporates an “unreasonable
determination of the facts in light of the evidence
presented” in the state-court proceedings. 28 U.S.C.
§ 2254(d). See Moore v. Mitchell, 708 F.3d 760,
774 (6th Cir. 2013). The district court is also required to
presume the state court's factual findings are correct
unless rebutted by “clear and convincing
evidence.” Robinson v. Howes, 663 F.3d 819,
825 (6th Cir. 2011) (citing 28 U.S.C. § 2254(e)(1)).
“This presumption of correctness also applies to the
factual findings made by a state appellate court based on the
state trial record.” Mason v. Mitchell, 320
F.3d 604, 614 (6th Cir. 2003) (citing Sumner v.
Mata, 499 U.S. 539, 546-47 (1981)).
Petitioner relies on an alleged discrepancy between the trial
record and the Michigan Court of Appeals' discussion of
that record to argue that the appellate court's factual
findings are not entitled to deference-namely, the state
appellate court's finding that DNA testing on the orange
sex toy was not completed until after Petitioner's
criminal trial. As described by Petitioner, during an October
4, 2011 calendar conference in his case the prosecutor indeed
indicated that a search warrant for two sex toys believed to
be involved in the underlying crime had been executed and
that “at least one of those has been sent to the
Michigan State Police lab for DNA testing.” ECF No. 32
PageID.1903. The prosecutor acknowledged she had “not
received those results” as of the date of the
conference but agreed to “pass them on to defense
counsel” when they became available. Id. As
explained by the Michigan Court of Appeals, however, this
planned DNA testing did not actually take place before trial.
People v. Smith, No. 312021, 2014 WL 4263093, at *1
(Mich. Ct. App. Aug. 28, 2014) (per curiam)
(unpublished). At trial, “[d]efense counsel's
cross-examination of the officer-in-charge left no doubt that
DNA analysis of the object was never obtained.”
Id. And defense counsel in fact used the absence of
DNA analysis to call the investigating officer's judgment
into question. Id. at *4. A September 18, 2013
letter from the State Appellate Defender Office addressed to
Petitioner more than a year after his trial and conviction
further explained that the orange sex toy had in fact never
been tested because “the DPD [Detroit Police
Department] does not have the complainant's DNA.”
ECF No. 1-4 PageID.233. This evidence belies Petitioner's
claim that potentially exculpatory results of DNA analysis
were withheld from the defense at trial. The Court finds
Petitioner has not presented clear and convincing evidence to
rebut the Michigan Court of Appeals' factual finding that
DNA testing was not completed until after Petitioner's
trial. Moreover, the results eventually obtained from DNA
testing were inconclusive and consistent with a mixture of
DNA of at least two individuals including one male
contributor. ECF No. 1 PageID.235-36. They are therefore not
on the foregoing, as previously determined by this Court, the
Michigan Court of Appeals' decision was not contrary to
or rooted in an unreasonable application of United States
Supreme Court precedent, or “based on an unreasonable
determination of the facts in light of the evidence
presented.” 28 U.S.C. § 2254(d). See ECF
No. 28 at PageID.15. Because Petitioner has failed to
establish an “obvious, clear, unmistakable, manifest,
or plain” palpable defect in this Court's prior
decision, his motion for reconsideration will be denied.
Am. Pie Pizz, Inc., 2011 WL 652834 at *1.
Perjured testimony ...