Lewis v. Vasbinder

          ORDER DENYING THE “PETITION FOR PANEL REHEARING” (DOCKET NO. 62)

          SEAN F. COX U.S. DISTRICT JUDGE.

         I. Background

         This is a habeas corpus action under 28 U.S.C. § 2254. Following a bench trial in 2000, Petitioner was found guilty of first-degree, premeditated murder, Mich. Comp. Laws § 750.316(1)(a), and sentenced to life imprisonment without the possibility of parole. The conviction arose from

the 1980 beating death of Cornell Smith. The incident occurred at about 10:30 p.m. on July 31, 1980 on the grounds of the Woodward School in Kalamazoo County. Witnesses saw two cars pull up to the school. The assailant got out of one car and approached the other car. An argument ensued, during which the assailant returned to his car and retrieved a baseball bat. The driver of the second car subsequently drove off, leaving the victim, who had been his passenger. The assailant chased the victim, and, according to witnesses, inflicted a fatal blow to the victim's head with a full swing of the bat.

People v. Lewis, No. 230887, 2002 WL 31957700, at *1 (Mich. Ct. App. Dec. 27, 2002). The Michigan Court of Appeals affirmed Petitioner's conviction, and on November 24, 2003, the Michigan Supreme Court denied leave to appeal. See People v. Lewis, 671 N.W.2d 880 (Mich. 2003) (table).

         In 2004, Petitioner filed his habeas corpus petition, which was assigned to former United States District Judge Lawrence P. Zatkoff. (Docket No. 3). The State moved for summary judgment and dismissal of the petition on the basis that Petitioner had not exhausted state remedies for his claims that his trial attorney (1) failed to obtain the services of an expert witness on eyewitness identification and (2) waived his right to impeach two witnesses with their prior convictions by failing to comply with the trial court's motion schedule. (Docket No. 11). Petitioner disagreed with the State's argument, but he stated in a response to the State's motion that, if Judge Zatkoff agreed with the State, he was willing to delete the claims which the State had argued were unexhausted and proceed with his other claims. (Docket No. 30).

         Judge Zatkoff subsequently agreed with the State that Petitioner did not exhaust state remedies for his claims that trial counsel failed to take adequate steps to obtain an expert witness and to impeach prosecution witnesses. However, because Petitioner had agreed to delete those claims to expedite review of his case on his other claims, Judge Zatkoff denied the State's motion for summary judgment. (Docket No. 33). Judge Zatkoff then adjudicated Petitioner's exhausted claims and denied the petition on the merits. (Docket No. 41). Petitioner appealed Judge Zatkoff's decision, but the United States Court of Appeals for the Sixth Circuit declined to grant a certificate of appealability. See Lewis v. Vasbinder, No. 07-2265 (6th Cir. June 6, 2008). In subsequent years, Petitioner attempted to file second or successive habeas petitions. The Sixth Circuit Court of Appeals, however, denied the requests for authorization to proceed with a second or successive habeas petition.

         In 2014, Petitioner raised his two unexhausted claims about trial counsel in a motion for relief from judgment, which he filed in the state trial court. The trial court determined that it was precluded from adjudicating Petitioner's claim about trial counsel's failure to impeach prosecution witnesses with their criminal histories because the issue was decided against Petitioner on appeal. The trial court adjudicated Petitioner's other claim about trial counsel on the merits and concluded that Petitioner was not prejudiced by counsel's failure to procure an expert witness. See People v. Lewis, No. 2000-0171-FC (Kalamazoo Cty. Cir. Ct. Mar. 30, 2015). Both the Michigan Court of Appeals and the Michigan Supreme Court denied Petitioner's applications for leave to appeal the trial court's decision. See People v. Lewis, No. 328472 (Mich. Ct. App. Sept. 29, 2015); People v. Lewis, 882 N.W.2d 144 (Mich. 2016).

         In 2017, Petitioner filed another habeas corpus petition, claiming that he had recently exhausted state remedies for his two claims about trial counsel. The 2017 case was assigned to United States District Judge Paul D. Borman, who transferred the petition to the Sixth Circuit as a second or successive petition. See Lewis v. Haas, No. 2:17-cv-10734 (E.D. Mich. Mar. 9, 2017). The Sixth Circuit denied leave to file a second or successive petition. See In re Lewis, No. 17-1253 (6th Cir. July 19, 2017).

         Petitioner subsequently filed a motion to amend his habeas petition in this case. (Docket No. 57). He also moved to re-open this case under Federal Rule of Civil Procedure 60(b) (docket no. 58) and to amend his Rule 60(b) (docket no. 60) to clarify that he was bringing his Rule 60(b) motion under subsections (4) and (6) of the rule. The basis for his motions to amend the habeas petition and re-open this case was his claim that trial counsel was ineffective for failing to (1) alert the trial court that the defense expert needed additional funds to cover his costs and (2) impeach two prosecution witnesses with their criminal histories. Petitioner argued that Judge Zatkoff erred when he determined that Petitioner had not exhausted state remedies for these claims and then declined to rule on the merits of Petitioner's claims about trial counsel.

         The case was randomly reassigned to this Court following Judge Zatkoff's retirement, and on January 14, 2019, the Court granted the motion to amend the Rule 60(b) motion, but denied Petitioner's motions to re-open this case and to amend his habeas petition. The Court stated that Petitioner did not file his Rule 60(b) motion within a reasonable time and that leave to amend was not warranted because Petitioner's claims appeared to be barred by the one-year statute of limitations and the motions did not relate back in time to the date of the initial petition.

         Now before the Court is Petitioner's “Petition for Panel Rehearing.” Petitioner argues that: there is no time limit for filing a motion under Rule 60(b); the trial court's determination that he raised his claims on appeal was the law of the case; and this Court erred in relying on White v. Dingle, 616 F.3d 844 (8th Cir. 2010), and Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000), for the principle that the “relation back” rule of Federal Rule of Civil Procedure 15(c) does not apply when there is no pending petition to which an amendment can relate back.

         II. ...