United States District Court, E.D. Michigan, Southern Division
Robert Winburn, a.k.a. Scott Libby, Petitioner,
Kevin Lindsey, Defendant.
R. Grand Mag. Judge.
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART MOTION FOR RECONSIDERATION 
E. LEVY UNITED STATES DISTRICT JUDGE.
29, 2019, Petitioner Robert Winburn filed a § 2241
petition for habeas corpus seeking relief from a state trial
court order in his ongoing criminal prosecution. (ECF No. 1.)
On September 16, 2019, the Court recharacterized
Winburn's petition as a § 1983 claim, declined to
exercise jurisdiction under the Younger abstention
doctrine, and dismissed the case without prejudice. (ECF No.
5.) On September 26, 2019, Petitioner filed this Motion for
Reconsideration. (ECF No. 7.) Because the Court erred in
recharacterizing Winburn's claims without first seeking
his informed consent, his motion is granted in part.
Winburn's motion is also denied in part because he has
not shown a palpable defect requiring reversal of dismissal.
is currently in custody of the Michigan Department of
Corrections at the G. Robert Cotton Correctional Facility in
Jackson, Michigan. (ECF No. 1, PageID.1-2.) Winburn is also a
pretrial detainee in Washtenaw County charged with
first-degree home invasion, armed robbery, and conspiracy to
commit first-degree home invasion. (ECF No. 1, PageID.4-5.)
Winburn has previously filed a habeas petition in this Court
challenging the pending charges on double jeopardy grounds.
See Libby v. Lindsey, Case No. 18-cv-13842 (E.D.
Mich. Dec. 12, 2018), ECF No. 1. No decision has been
rendered in that case.
21, 2019, the state trial court, noting that
“Defendant's actions are interfering with the
ability of the court to conclude a trial of his case, ”
entered an order enjoining Winburn “from filing any
complaint or grievance in this court, with the Attorney
Grievance Commission, or any court against his appointed
counsel until trial of this case is concluded.” Order
Enjoining Def., People v. Winburn, Case No.
17-654-FC, (Washtenaw Cty. Trial Ct. June 21, 2019)
(hereinafter “Order Enjoining Defendant”).
Winburn subsequently filed this petition seeking relief from
the Order Enjoining Defendant and to ensure his presence at
trial. (ECF No. 1.) He alleges that the order demonstrates a
conspiracy between the state court and his court-appointed
attorney to deprive him of his First Amendment rights and to
try him “in abstentia” in retaliation
for filing his 2018 habeas petition. (ECF No. 1, PageID.4.)
Winburn's petition did not challenge the conditions,
legality, or duration of his custody, the Court reconstrued
the petition as a claim for declaratory and injunctive relief
under 42 U.S.C. § 1983. (ECF No. 5, PageID.73.) The
Court declined to exercise jurisdiction under the
Younger abstention doctrine. (Id. at
PageID.74-77.) The Court found that each of the three
Younger criteria was present: 1) a state criminal
proceeding against Petitioner is currently pending; 2) the
proceeding involves an important state interest; 3) and
Petitioner has an adequate opportunity to raise his
constitutional claims in state court. Id.;
Younger v. Harris, 401 U.S. 37 (1971). The Court
dismissed Petitioner's case without prejudice.
now argues that the Court committed five errors that require
reconsideration. (ECF No. 7.)
prevail on a motion for reconsideration under Local Rule 7.1,
a 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.” E.D. Mich. LR 7.1(h)(3). “A
palpable defect is a defect that is obvious, clear,
unmistakable, manifest or plain.” Witzke v.
Hiller, 972 F.Supp. 426, 427 (E.D. Mich. 1997). The
“palpable defect” standard is consistent with the
standard for amending or altering a judgment under Federal
Rule of Civil Procedure 59(e), that there was “(1) a
clear error of law; (2) newly discovered evidence; (3) an
intervening change in controlling law; or (4) a need to
prevent manifest injustice.” Henderson v. Walled
Lake Consol. Schs., 469 F.3d 479, 496 (6th Cir. 2006).
Motions for reconsideration should not be granted if they
“merely present the same issues ruled upon by the
court, either expressly or by reasonable implication, ”
E.D. Mich. LR 7.1(h)(3), or if the “parties use . . . a
motion for reconsideration to raise new legal arguments that
could have been raised before a judgment was issued, ”
Roger Miller Music, Inc. v. Sony/ATV Publ'g, 477
F.3d 383, 395 (6th Cir. 2007).
motion alleges five errors in the Court's September 16
Order that require reconsideration. The Court erred in
recharacterizing Winburn's petition as a § 1983
claim without his informed consent, and so the Court will no
longer recharacterize it. This procedural error does not
impact the substantive analysis of Winburn's claims.
Younger abstention is still appropriate, and the
Court still dismisses Winburn's petition without
prejudice. Petitioner is not granted leave to proceed in
forma pauperis on appeal, and a Certificate of
Appealability is denied.
Notice of Recharacterization
argues that the Court erred in failing to notify him of its
intent to recharacterize his claims. In Castro v. United
States, the Supreme Court held that a court cannot
recharacterize a pro se litigant's § 1983 claim as a
first § 2255 habeas petition “unless the
court informs the litigant of its intent to recharacterize,
warns the litigant that the recharacterization will subject
subsequent § 2255 motions to the law's ‘second
or successive' restrictions, and provide the litigant
with an opportunity to withdraw, or to amend, the
filing.” 540 U.S. 375, 377 (2003). Here, the Court
recharacterized Petitioner's § 2241 claim as a
§ 1983 claim. This recharacterization does not risk the
prejudicial consequences described in Castro, but it
does generate its own procedural consequences. As the Seventh
Circuit explains in Glaus v. Anderson, a
recharacterization of a habeas claim to a § 1983 claim
can subject a claim to the PLRA's three-strikes rule and
different exhaustion requirements, among other procedural
distinctions. 408 F.3d 382, 388 (7th Cir. 2005). The Seventh,
Eighth, and Ninth Circuits have all held that a district
court may recharacterize a habeas petition “so long as
it warns the pro se litigant of the consequences of
the conversion and provides an opportunity for the litigant
to withdraw or amend his complaint.” Id.;
Nettles v. Grounds, 830 F.3d 922, 936 (9th Cir.
2016); Spencer v. Haynes, 774 F.3d 467, 471 (8th
Cir. 2014). Although the Sixth Circuit has not spoken on the
issue, this Court finds the reasoning of the Seventh, Eight,
and Ninth Circuits persuasive and holds that it erred in
recharacterizing Petitioner's claims ...