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Smith v. Bergh

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

July 17, 2019

DAVID BERGH, Respondent.



         Petitioner 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.

         Petitioner 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.


         The 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.

         Motions 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.

         “A 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).

         There 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, 2012).

         A. Alleged misrepresentation by Michigan Court of Appeals

         Petitioner 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.

         As 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)).

         Here, 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 exculpatory.

         Based 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.

         B. Perjured testimony ...

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