United States District Court, S.D. Ohio, Western Division
ORDER GRANTING RESPONDENT'S MOTION TO RECONSIDER
THE PORTION OF THE COURT'S ORDER GRANTING A BLANKET
CERTIFICATE OF APPEALABILITY ON ALL FOURTEEN GROUNDS (DOC.
Timothy S. Black, Judge
civil action is before the Court regarding Respondent's
motion to reconsider the portion of the Court's Order
granting a blanket certificate of appealability on all
fourteen grounds. (Doc. 46).
November 6, 2015, the Magistrate Judge assigned to this case
issued a report and recommendations recommending that
Petitioner Marty Livingston's petition for habeas corpus
be denied. (Doc. 36). Following Petitioner's objections
to the report and recommendations (Doc. 39), this Court
ordered the Magistrate Judge to supplement his report and
recommendations. (Doc. 40). The Magistrate Judge's
supplemental report and recommendations were filed January 7,
2016, and again recommended dismissal of the petition for
writ of habeas corpus. (Doc. 41). Following Petitioner's
objections to the supplemental report and recommendations
(Doc. 42), this Court entered an Order on February 6, 2017,
largely adopting the report and recommendations of the
Magistrate Judge and dismissing the petition. (Doc. 43).
Court's Order closing this civil action adopted the
report and recommendations of the Magistrate Judge in all
ways save one: while the Magistrate Judge recommended that a
certificate of appealability (COA) should not issue with
respect to the grounds in Petitioner's petition for writ
of habeas corpus, this Court determined that a COA was
appropriate, and accordingly issued a COA for all of the
claims in the petition. The Order did not individually
evaluate each claim of the petition to determine whether a
COA was warranted, but instead issued a “blanket”
COA indicating that Petitioner was free to appeal any of the
grounds in his petition.
February 16, 2017, Respondent filed the motion for
reconsideration of the Court's previous Order dismissing
the petition for writ of habeas corpus. (Doc. 46).
Respondent's motion asks the Court to reconsider only the
portion of its Order granting a COA to the Petitioner.
Respondent argues that the issuance of a
“blanket” COA was improper, as the Court was
required to evaluate each individual ground of the petition
to determine if a COA was warranted for that ground.
Respondent further argues that none of the 14 grounds
enumerated in the petition merit the Court's granting a
STANDARD OF REVIEW
the Federal Rules of Civil Procedure “do not recognize
a ‘Motion for Reconsideration[, ]' [t]he Sixth
Circuit has held…that a court may treat a motion to
reconsider under the standard of Rule 59(e) of the Federal
Rules of Civil Procedure.” Solar X Eyewear,
Case No. 1:11cv763, 2011 U.S. Dist. LEXIS 100421, at *3 (N.D.
Ohio Sept. 7, 2011) (citing Smith v. Hudson, 600
F.2d 60, 62-63 (6th Cir. 1979) (“[A] motion which asks
a court to vacate and reconsider, or even to reverse its
prior holding, may properly be treated under Rule 59(e) as a
motion to alter or amend a judgment.”)). The Sixth
Circuit has determined, however, that a motion for
reconsideration may be granted only: “(1) to correct a
clear error of law; (2) to account for newly discovered
evidence or an intervening change in the controlling law; or
(3) to otherwise prevent manifest injustice.” CGH
Transp. Inc. v. Quebecor World, Inc., 261 Fed. App'x
817, 823 (6th Cir. 2008) (citing GenCorp, Inc. v. Am.
Int'l Underwriters, 178 F.3d 804, 834 (6th Cir.
1999)). Such a motion is extraordinary and is seldom granted
because it contradicts notions of finality and repose.
Wells Fargo Bank v. Daniels, No. 1:05cv2573, 2007
U.S. Dist. LEXIS 80694, at *1 (N.D. Ohio Oct. 22, 2007).
“Further, under Rule 59(e), parties cannot use a motion
for reconsideration to raise new legal arguments that could
have been raised before a judgment was issued.”
Roger Miller Music v. Sony/ATV Publ'g, 477 F.3d
383, 395 (6th Cir. 2007).
main thrust of Respondent's motion is that this Court
erred when it chose to grant a COA for each of the grounds in
the petition for writ of habeas corpus without evaluating
each ground individually. Respondent argues that “[i]t
is well settled that a blanket certificate of appealability
for all claims is improper, even in a capital case.”
(Doc. 46, at 5 (citing Frazier v. Huffman, 348 F.3d
174 (6th Cir. 2003), citing Porterfield v. Bell, 258
F.3d 484 (6th Cir. 2001); Murphy v. Ohio, 263 F.3d
466 (6th Cir. 2001)).
Court has reviewed the cases offered by Respondent in support
of its motion and the law is clear. The rule articulated in
the cases cited by Respondent is applicable to the blanket
order granting a COA previously granted by the Court in this
case. The issuance of such a blanket COA was therefore a
“clear error of law” that merits the granting of
Respondent's construed Rule 59(e) motion. The Court must
reevaluate each of Petitioner's grounds for relief
separately to determine which grounds merit a COA and which
do not. Accordingly, the Court will evaluate each of
Petitioner's grounds for relief in turn.
Procedurally defaulted claims
previous Order adopting the magistrate judge's report and
recommendations and denying Petitioner's motion for writ
of habeas corpus, the Court found that grounds 1, 2, 3, 4, 6,
7, 8, 9, 10, 13, and 14 of Petitioner's motion were
procedurally defaulted, and accordingly denied each ground.
(Doc. 43). The Supreme Court has outlined the test a district
court should use to evaluate whether a COA is warranted for a
habeas claim that was denied on procedural grounds:
[W]hen the district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA should issue (and an
appeal of the district court's order may be taken) if the
prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right, and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 478 (2000). The
Court shall apply this standard to each of the procedurally
defaulted grounds for habeas relief from Petitioner's