MICHAEL R. MERZ, Magistrate Judge.
This habeas corpus case is before the Court on Petitioner's Motion to Reconsider (ECF No. 27). While the Federal Rules of Civil Procedure do not expressly authorize a motion to reconsider, they do allow a motion to amend the judgment, provided it is filed within twenty-eight days of the judgment. Here the judgment was filed September 23, 2019, and the instant Motion is deemed filed on the date of its mailing from Petitioner's place of incarceration, October 3, 2019 (See postmark at ECF No. 27, PageID 1570).
Gencorp, Inc. v. American Int'l Underwriters, 178 F.3d 804, 834 (6
A motion under Fed. R. Civ. P. 59(e) is not an opportunity to reargue a case. Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6
As a post-judgment motion, the Motion to Reconsider is deemed referred to the Magistrate Judge for a report and recommendations under 28 U.S.C. § 636(b)(3).
Pelfrey pleaded the following grounds for relief:
(Petition, ECF No. 1, PageID 25, 26, 31, 33 39, 43, 47) (emphasis removed).
Most of Pelfrey's argument on Ground One is to the effect that the prosecutor suppressed incriminating evidence until trial. See, e.g., PageID 1551, section labeled "Undisclosed Incriminating Evidence" and PageID 1554 "Suppressing incriminating evidence from the discovery, and then bringing it out on direct examination." However a prosecutor is not under a constitutional duty to disclose incriminating evidence prior to trial. Moreover, Pelfrey made no similar claim in the Petition, so the Court committed no manifest error of law in rejecting any such argument.
On the other hand, the Report and Recommendations and Supplement Report and Recommendations dealt with Pelfrey's claim of prosecutorial misconduct and he has demonstrated no error of law in the way they were handled.
Pelfrey's Second Ground for Relief is that he was denied due process when parol evidence was admitted. Based on the Reports, the Court concluded that Ground Two was procedurally defaulted and that there was no constitutional right to application of the parol evidence rule (Decision and Entry, ECF No. 23, PageID 1503). The instant Motion cites Phillips v. Woodford, 267 F.3d 966 (9
The Third Ground for Relief asserted insufficient evidence had been presented. In his Motion, Pelfrey cites In re Winship, 397 U.S. 358 (1970), to the proposition that "suppressed uncorroborated incriminating evidence . . . is insufficient. . . ." Winship stands for the general proposition that the state must produce sufficient evidence on every element of a crime to convict, but it says nothing about suppressing such evidence before trial, nor does it require corroboration.
Respecting Pelfrey's speedy trial claim, the Magistrate Judge found it was procedurally defaulted and also not cognizable in habeas and the District Court's Decision and Entry adopted those findings (ECF No. 23, PageID 1503). Pelfrey presents no authority to show this conclusion is an error of law.
In his five-page Conclusion, Pelfrey re-argues his claims of prosecutorial misconduct, but cites no authority to show this Court's handling of those claims was improper. In particular, Pelfrey does nothing to rebut the finding he procedurally defaulted this claim.
Petitioner's Motion to Reconsider does not demonstrate that this Court erred as a matter of law in dismissing his Petition, nor does he tender any newly-discovered evidence. The Motion to Reconsider should therefore be denied. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis.
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within fourteen days after being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen days because this Report is being served by mail. Such objections shall specify the portions of the Report objected to and shall be accompanied by a memorandum of law in support of the objections. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).