Winburn v. Lindsey

• Decision Date: 01 November 2019
• Docket Number: Case No. 19-cv-12226
• Parties: Robert Winburn, a.k.a. Scott Libby, Petitioner, v. Kevin Lindsey, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

Robert Winburn, a.k.a. Scott Libby, Petitioner, v. Kevin Lindsey, Defendant.

Case No. 19-cv-12226

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

November 1, 2019

Judith E. Levy United States District Judge

Mag. Judge David R. Grand

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR RECONSIDERATION[7]

On July 29, 2019, PetitionerRobert Winburn filed a § 2241petition 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.

I.Background

Winburn 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.SeeLibby v. Lindsey, Case No. 18-cv-13842(E.D. Mich.Dec. 12, 2018), ECF No. 1.No decision has been rendered in that case.

On June 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.)

Because 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.

Petitioner now argues that the Court committed five errors that require reconsideration.(ECF No. 7.)

II.Legal Standard

To 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).

III.Analysis

Winburn's 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.

A.Notice of Recharacterization

Winburn 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 "unlessthe 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 without his informed consent.Correcting this defect will result in a different disposition of the case, as the Court will no longer recharacterize Petitioner's claims and Petitioner will be subject to a different set of procedural consequences in future filings.Therefore, Petitioner has satisfied the standard for reconsideration set forth in LocalRule 7.1.Petitioner's Motion for Reconsideration is granted with respect to this claim.

B.Substance of Recharacterization

Petitioner argues that the Court erred substantively in recharacterizing his habeas petition as a § 1983 suit.Because the Court no longer recharacterizes Petitioner's claims but still will dismiss Petitioner's suit under the Younger abstention doctrine, Petitioner's Motion for Reconsideration is denied as moot with respect to this claim.

C.No Opportunity for State Court Review

Winburn challenges the Court's conclusion with respect to Younger abstention's third prong.According to Petitioner, any opportunity to raise constitutional claims in state court will be inadequate for three reasons.(ECF No. 7, PageID.84-86.)First, Petitioner argues that he cannot seek review in state court because "by virtue of the enjoinment order, [he] is specifically directed that he cannot file any motion in any court in pro-se."(ECF No. 7, PageID.84.).Second, Petitioner claims that any state court review will not be timely.(Id. at PageID.85.)Finally, Petitioner argues that a state court conspiracy renders state court review futile.(Id. at PageID.86.)

Petitioner's first claim is untrue; he may seek review of the Order Enjoining Defendant in state court.The order is more limited in scope than Petitioner suggests.It prohibits Petitioner from "filing any complaint or grievance in [state trial] court, with the Attorney Grievance Commission, or any courtagainst his appointed counsel until trial of this case is concluded."Order Enjoining Defendant(emphasis added).The terms of the order do not prevent Petitioner from filing pleadings that raise claims other than those against his appointed counsel.Petitioner may seek an interlocutory appeal of the Order Enjoining Defendant.SeeMCR 7.105.Petitioner argues that "the gag order by the state trial court limits petitioner's appeal options to the very court complained of."(ECF No. 7, Page.ID.83.)However, Michigan Court Rules provide that applications for leave to appeal are to be filed with the clerk of the circuit court.MCR 7.105(A).Thus, Winburn has a process through which state courts may provide adequate review of his constitutional claims.

Winburn next argues that any state court review cannot be timely, citing to Riley v. Nevada Supreme Court.763 F. Supp. 446(D. Nev.1991)(cited byPetitioner as Weaver v. Nevada Supreme Court, 1991 U.S. Dist. LEXIS 5929(U.S.D.C. Nev.1991)).In Riley, a class of plaintiffschallenged a Nevada Supreme Court rule governing procedures in death penalty appeals.Id.The court found...