United States District Court, E.D. Michigan, Southern Division
ORDER
ARTHUR
J. TARNOW UNITED STATES DISTRICT JUDGE.
Petitioner
Arthur Bell filed a habeas petition in November 2006. He
challenged his convictions for first-degree felony murder and
possession of a firearm during the commission of a felony.
The Court granted a conditional writ of habeas corpus on
Bell's claim that the State failed to turn over
Brady material and that counsel was ineffective in
failing to present alibi witnesses. Bell v. Howes,
757 F.Supp.2d 720 (E.D. Mich. 2010) (“Bell
I”). The Court did not address the remaining
habeas claims. The Sixth Circuit Court of Appeals reversed
and remanded the case for further proceedings consistent with
its opinion. Bell v. Howes, 703 F.3d 848 (6th Cir.
2012).
On
remand, the Court denied the petition and granted a
certificate of appealability (COA). Bell v. Howes,
2014 WL 255886 (E.D. Mich. Jan. 23, 2014). The Sixth Circuit
Court of Appeals affirmed the denial of habeas relief.
Bell v. Howes, 701 Fed. App'x 408 (6th Cir.
2017).
Petitioner
has now filed a series of motions in this closed habeas
corpus proceeding. As an initial matter, the Court addresses
Petitioner's frequent references to and reliance upon the
Court's decision in Bell I, conditionally
granting habeas relief. The Court held that Petitioner raised
a credible claim of actual innocence. The Sixth Circuit Court
of Appeals reversed the Court's decision. Whether this
Court continues to believe in the correctness of its actual
innocence finding has no bearing on this matter. The Sixth
Circuit's decision is the law of the case.
First,
Petitioner has filed a motion to strike and motion to
adjudicate pending motions. (Dkt. 322.) The motion will be
granted in part and denied in part. Petitioner seeks to
strike six motions he filed over the course of several
months. Federal Rule of Civil Procedure 12(f) authorizes a
district court to strike from a pleading “an
insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter ... on its own[ ] or [ ] on
motion made by a party either before responding to the
pleading or, if a response is not allowed, within 21 days
after being served with the pleading.” Fed.R.Civ.P.
12(f)(1)-(2). This rule is not to be used by a party to
strike its own pleading. See Traywick v. Hood, No.
08-00327, 2009 WL 2406173, *1 (S.D. Ala. Aug. 5, 2009). The
Court, therefore, construes the motion as a motion to
withdraw Petitioner's Motion for Certificate of
Appealability (Dkt. 261), Motion for Relief from Judgment
(Dkt. 262), Motion to Amend Information to Motion for Relief
from Judgment (Dkt. 263), Motion to Amend Information to
Motion for Relief from Judgment (Dkt. 264), Motion for Leave
for Presentment of Facts (Dkt. 290), and Motion for Leave to
File Motion for Default Judgment (Dkt. 299). The Court grants
Petitioner leave to withdraw these pleadings. The remainder
of the motion, which seeks adjudication of pending motions,
will be denied as moot.
Next,
Petitioner filed four motions for the appointment of counsel.
(Dkt. 323, 328, 338, & 341.) Petitioner has no absolute
right to be represented by counsel on federal habeas corpus
review, but a court may appoint counsel to serve the
interests of justice. See Abdur-Rahman v. Michigan Dept.
of Corrections, 65 F.3d 489, 492 (6th Cir. 1995); 18
U.S.C. § 3006A(a)(2)(B). In fact, the Court previously
appointed counsel while the petition was pending in this
Court and the Sixth Circuit Court of Appeals granted
counsel's motion to continue representation on appeal.
Because the Court denied habeas relief five years ago, the
Sixth Circuit Court of Appeals affirmed the Court's
decision, and the case is closed, the Court finds no
justification for appointing counsel at this time.
Petitioner
seeks release on bond. (Dkt. 321, 327, & 334) A
petitioner may be released on bond pending a decision on the
merits of a habeas corpus petition where the petitioner
shows: (1) a substantial claim of law, and (2) the existence
of “some circumstance making the [motion for bond]
exceptional and deserving of special treatment in the
interests of justice.” Aronson v. May, 85
S.Ct. 3, 5 (1964); Dotson v. Clark, 900 F.2d 77, 79
(6th Cir. 1990). Petitioner may not be released on bond
because his petition has been denied. The motions for bond
will be denied.
Next,
Petitioner filed a Motion to Consolidate. (Dkt. 267.) He asks
this Court to transfer a civil rights case filed under 42
U.S.C. § 1983 from the United States District Court for
the Western District of Michigan to this Court and to then
consolidate the civil rights case and the habeas corpus
proceeding. Rule 42 does not provide for the consolidation of
cases proceeding in different jurisdictions. See Italian
Colors Restaurant v. American Express Co., No. 03-3719,
2003 WL 22682482, *7 (N.D. Cal. 2003) (“Consolidation
under Federal Rule of Civil Procedure 42(a) is a device
constricted in scope to multiple cases pending in the same
district.”). This Court may not “take cases out
of other jurisdictions in order to consolidate them.”
Diez v. Washington Mutual Bank, No. 09-cv-2390, 2011
WL 4434064, *6 (E.D. N.Y. Sept. 21, 2011). The Court will
deny this motion.
Petitioner's
remaining pending motions presuppose the existence of a
pending habeas corpus proceeding. Since the petition is no
longer pending, the Court finds no basis for expanding the
record, holding a telephone conference, ordering an
evidentiary hearing, or staying the case. (Dkt. 316, 319,
324, 326, 333, 336, & 342.)
Similarly,
the Court will deny Petitioner's Motion for Order to Show
Cause (Dkt. 339), Motion for Sanctions (Dkt. 340), and Motion
Requesting the State Attorneys Concede to Intentionally
Suppressing Evidence (Dkt. 343), because the case is closed.
In each
of the motions the Court denies today, Petitioner continues
to assert his innocence. If Petitioner believes he has new
evidence to challenge his state-court convictions, he must
seek prior authorization from the Sixth Circuit Court of
Appeals to file a successive petition as required by 28
U.S.C. § 2244(b)(3)(A). He may not continue to seek
review of his convictions in this now-closed case.
Accordingly,
the Court GRANTS IN PART AND DENIES IN PART Petitioner's
Motion to Strike and for Adjudication of Pending Motions.
(Dkt. 322.) The Court construes the motion to strike
pleadings as a motion to withdraw, and permits Petitioner to
withdraw the following motions: Motion for Certificate of
Appealability (Dkt. 261), Motion for Relief from Judgment
(Dkt. 262), Motion to Amend Information to Motion for Relief
from Judgment (Dkt. 263), Motion to Amend Information to
Motion for Relief from Judgment (Dkt. 264), Motion for Leave
for Presentment of Facts (Dkt. 290), and Motion for Leave to
File Motion for Default Judgment (Dkt. 299). The Court denies
as moot the remainder of the motion.
The
Court DENIES Petitioner's remaining pending motions.
(Dkt. 267, 316, 319, 321, 323, 324, 326, 327, 328, 333, 334,
336, 338, 339, 340, 341, 342, & 343.)
These
motions are denied without prejudice to Petitioner's
right to move for appointment of counsel, to expand the
record, an evidentiary hearing, or for release on bond, if he
is at some ...