United States District Court, E.D. Michigan, Southern Division
MARTIN A. LEWIS, Petitioner,
DOUG VASBINDER, Respondent.
ORDER DENYING THE “PETITION FOR PANEL
REHEARING” (DOCKET NO. 62)
F. COX U.S. DISTRICT JUDGE.
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)
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.
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.
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).
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).
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
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.
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