United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING MOTION FOR RECONSIDERATION
Gershwin A. Drain United States District Court Judge.
Douglas Jackson filed a petition for writ of habeas corpus
with this Court pursuant to 28 U.S.C. § 2254,
challenging his convictions for three counts of first-degree
criminal sexual conduct, one count of assault with intent to
do great bodily harm, and one count of unlawful imprisonment.
This Court held the petition in abeyance and administratively
closed the case to permit Petitioner to complete state
post-conviction proceedings in the state courts where he had
attempted to exhaust additional claims. Jackson v.
Parish, No. 15-CV-11622, 2019 WL 4573799 (E.D. Mich.
Sept. 20, 2019).
before the Court is Petitioner's Motion for
Reconsideration [#87]. For the reasons that follow, the Court
will DENY the motion.
Rule 7.1 allows a party to file a motion for reconsideration.
E.D. Mich. L.R. § 7.1(g). However, a motion for
reconsideration which presents the same issues already ruled
upon by the court, either expressly or by reasonable
implication, will not be granted. Whitehouse Condo. Grp.,
LLC v. Cincinnati Ins. Co., 959 F.Supp.2d 1024, 1031
(E.D. Mich. 2013). A motion for reconsideration should be
granted if the movant demonstrates a palpable defect by which
the court and the parties have been misled and that a
different disposition of the case must result from a
correction thereof. See MCI Telecommunications Corp. v.
Michigan Bell Telephone Co., 79 F.Supp.2d 768, 797 (E.D.
Petitioner argues that this Court erred in holding the
petition in abeyance because he alleges that the state courts
are unwilling to provide him post-conviction relief.
Petitioner believes that the trial judge erred by construing
his amended motion for relief from judgment as a successive
petition, which is precluded under Chapter 6 of the Michigan
Court Rules. M.C.R. 6.502(G). Petitioner further notes that
when he filed a motion for reconsideration after his motion
for relief from judgment was denied, the judge never ruled on
the motion. Petitioner argues that he already presented his
claims to the state courts and no longer has any available
state court remedies. Petitioner essentially argues that it
would be futile to require him to exhaust his claims.
exception to the exhaustion requirement exists only if there
is no opportunity to obtain relief in the state courts or if
the corrective process is so clearly deficient as to render
futile any effort to obtain relief in the state courts.
Duckworth v. Serrano, 454 U.S. 1, 3 (1981);
Sitto v. Bock, 207 F.Supp.2d 668, 676 (E.D. Mich.
2002). A habeas petitioner, however, has the burden of
showing that all available state court remedies have been
exhausted or that exceptional circumstances exist that would
make exhaustion unnecessary. See Doty v. Lund, 78
F.Supp.2d 898, 901 (N.D. Iowa 1999).
motion for reconsideration, Petitioner fails to address the
fact that on September 10, 2019, the Michigan Supreme Court
remanded Petitioner's case back to the Wayne County
Circuit Court to address Petitioner's motion for
reconsideration. The Michigan Supreme Court, in a fairly
lengthy order, directed the trial court to determine whether
Petitioner's amended motion for relief from judgment that
was filed on May 24, 2016 constitutes a successive motion for
relief from judgment within the meaning of Chapter 6. M.C.R.
6.502(G). If the trial judge determines that it is not a
successive motion, the judge has been directed to decide the
motion under the standard for granting or denying
post-conviction relief found in Chapter 6. M.C.R. 6.508. If
the judge determines that this motion is successive, the
judge may deny relief pursuant to Chapter 6. M.C.R. 6.502(G).
The judge was ordered to “issue an opinion setting
forth its analysis.” In re Jackson, 932 N.W.2d
622 (Mich. 2019). The Michigan Supreme Court has thus ordered
the trial judge to adjudicate petitioner's motion for
reconsideration and possibly adjudicate anew some of the
claims raised by Petitioner in his amended motion for relief
Court held the case in abeyance to give Petitioner an
opportunity to properly exhaust his claims on state
post-conviction review. This Court noted that a habeas
petition is considered unexhausted when a state
post-conviction motion remains pending in the state courts.
The Court also found that Petitioner would have the
opportunity to appeal any denial of the post-conviction
motion to the state appellate courts. Jackson v.
Parish, 2019 WL 4573799, at * 3. This Court noted that
“a federal court cannot consider granting habeas relief
‘if there still is a potential state remedy for the
state courts to consider.'” Id. (quoting
Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009)).
Petitioner claims that it would be futile to exhaust his
remedies in state court at this point, the Michigan Supreme
Court has remanded the case to the trial court judge for her
to consider Petitioner's motion for reconsideration and
possibly adjudicate the remaining claims that Petitioner
raised in his amended motion for relief from judgment. Any
failure by Petitioner to pursue his claims in state court on
remand would disqualify “his case from consideration
under the narrow exception [to the exhaustion
requirement].” See Dillon v. Hutchinson, 82 F.
App'x. 459, 462 (6th Cir. 2003). In addition, the
“futility to object” exception to the exhaustion
requirement is not satisfied by a habeas petitioner's
expectation that a state court will rule against him or her.
See United States ex. rel. Centanni v. Washington,
951 F.Supp. 1355, 1365 (N.D. Ill. 1997); see also Porter
v. White, No. 2001 WL 902612, * 2 (E.D. Mich. Aug. 6,
2001). Moreover, a habeas petitioner's conclusory
allegation that the state courts are biased is insufficient
to establish futility to excuse the petitioner from
exhausting his or her state court remedies. See, e.g.,
Crank v. Jenks, 224 F. App'x. 838, 839 (10th Cir.
2007). In determining whether the futility exception to the
exhaustion requirement applies, the “pertinent
question” is not whether the state court would be
inclined to rule in the habeas petitioner's favor, but
whether there is any available state procedure for
determining the merits of petitioner's claim.
Spreitzer v. Schomig, 219 F.3d 639, 647 (7th Cir.
2000) (quoting White v. Peters, 990 F.2d 338, 342
(7th Cir. 1993)).
even if it would be futile for Petitioner to exhaust his
additional claims, this Court also noted that it would be
premature to adjudicate Petitioner's claims on the merits
at this point. Many of the claims are currently being
reconsidered on remand in the state trial court and might
possibly lead to Petitioner obtaining relief in the state
courts on one of those claims, thus mooting his current
petition. Jackson v. Parish, 2019 WL 4573799, at *
Court will deny Petitioner's motion because he is merely
presenting issues which were already ruled upon by this
Court, either expressly or by reasonable implication, when
the Court held the petition in abeyance and administratively
closed the case. Whitehouse Condo. Grp., LLC, 959
F.Supp.2d at 1031.
Motion for Reconsideration [#87] is therefore DENIED.