UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

EBONY CRYSTAL MALCOM,

Petitioner,

v. Case No. 14-CV-13059

MILLICENT WARREN,

Respondent,

 /

OPINION AND ORDER GRANTING THE MOTION FOR IMMEDIATE

CONSIDERATION AND DENYING THE MOTIONS FOR RELEASE ON BOND AND

FOR RECONSIDERATION 

On August 29, 2014, the court dismissed without prejudice Petitioner Ebony

Crystal Malcom’s petition for writ of habeas corpus because she had yet to properly

exhaust her claims with the state courts. The court also denied Petitioner a certificate of

appealability. Malcom v. Warren, No. 2:14-CV-13059, 2014 WL 4272788 (E.D. Mich.

August 29, 2014). 

Petitioner has filed five “affidavits,” which the court construes as motions. 

Petitioner has filed a motion for release on bond, for reconsideration of the court’s order

of dismissal, and for immediate consideration of the motions. For the reasons that

follow, the motion for immediate consideration is granted. The court will deny the

motions for reconsideration and for release on bond.

The court will discuss Petitioner’s motions for reconsideration first. Eastern

District of Michigan Local Rule 7.1(g) provides that, “without restricting the court’s

discretion,” a motion for reconsideration will not be granted unless the movant can (1)

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“demonstrate a palpable defect by which the court and the parties have been misled,”

and (2) show that “correcting the defect will result in a different disposition of the case.”

E.D. Mich. LR 7.1(g)(3). “A ‘palpable defect’ is ‘a defect that is obvious, clear,

unmistakable, manifest, or plain.’” Pietrowski v. Merchants and Medical Credit Corp.,

256 F.R.D. 544, 552 (E.D. Mich. 2008) (internal citations omitted). 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. Id. (citing E.D. Mich. LR

7.1(g)(3)).

Petitioner claims in her motions for reconsideration that the court erred in finding

that Petitioner did not exhaust her state court remedies prior to filing her habeas

petition. The court found that Petitioner had not exhausted her state court remedies

because she had yet to file an application for leave to appeal with the Michigan

Supreme Court following the affirmance of her appeal of right by the Michigan Court of

Appeals. The court noted that although Petitioner had also filed two state petitions for

writ of habeas corpus with the Michigan Court of Appeals, under Michigan law habeas

corpus cannot serve as a substitute for an appeal and cannot be used to review the

merits of a criminal conviction unless a radical jurisdictional defect had been alleged. 

The court indicated that even if two of Petitioner’s ten claims might qualify as

jurisdictional defects, Petitioner’s remaining claims did not qualify as defects and thus

could not be properly exhausted by means of a state habeas petition. 

Petitioner now claims that she filed an application for leave to appeal with the

Michigan Supreme Court, which was denied. Although Petitioner did file an application

for leave to appeal with the Michigan Supreme Court, it was not from her appeal of right

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but from one of the state habeas petitions that had been denied by the Michigan Court

of Appeals. See Malcom v. Warren, No. 319875 (Mich.Ct.App. May 21, 2014); lv. to

appeal denied at 496 Mich. 868, 849 N.W.2d 388, 2014 WL 3752130 (Mich. July 29,

2014).

As mentioned above, Petitioner could not use a state petition for writ of habeas

corpus to exhaust most, if not all, of her claims. A review of the Michigan Court of

Appeals’ docket sheet from Petitioner’s appeal of right shows that Petitioner filed an

application for leave to appeal to the Michigan Supreme Court on September 5, 2014,

but that no decision has been rendered in that case. Because the Michigan Supreme

Court has yet to issue a decision on the application for leave to appeal the denial of her

appeal of right by the Michigan Court of Appeals, her claims remain unexhausted.1

The court will deny Petitioner’s motions for reconsideration, because she failed to

show that this court erred in dismissing her petition on exhaustion grounds. 

Petitioner has also requested that she be released on bail. To receive bond

pending a decision on the merits of a habeas corpus petition, a petitioner must show a

substantial claim of law based on the facts and exceptional circumstances justifying

special treatment in the interest of justice. Lee v. Jabe, 989 F.2d 869, 871 (6th Cir.

1993) (quoting Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990)); see also Nash v.

Eberlin, 437 F. 3d 519, 526, n. 10 (6th Cir. 2006). There will be few occasions where a

habeas petitioner meets this standard. Dotson, 900 F. 2d at 79. Federal courts may

grant bail when granting the writ. See Sizemore v. District Court, 735 F. 2d 204, 208

1

 The court obtained this information about People v. Malcom, No. 315265

(Mich.Ct.App.) from the Michigan Court of Appeals’ website, coa.courts.mi.gov/, of

which this court is able to take judicial notice. See e.g. Graham v. Smith, 292 F. Supp.

2d 153, 155, n. 2 (D. Me. 2003). 

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(6th Cir. 1984). By implication, a federal court should not grant bail under other

circumstances. In addition, it is improper to admit a habeas petitioner to bail prior to the

exhaustion of state remedies absent the showing of extraordinary circumstances.

Lucas v. Hadden, 790 F. 2d 365, 367-68 (3rd Cir. 1986). Accordingly, the court will

deny Petitioner’s request for release on bond.

ORDER

Based upon the foregoing, IT IS HEREBY ORDERED that the Petitioner’s

“Affidavit: Request for Immediate Consideration” [Dkt. # 6] is GRANTED. 

IT IS FURTHER ORDERED that the “Affidavit: Request for for Release or

Personal Recognizance Without Surety” [Dkt. # 7], the “Affidavit: Request for

Reconsideration” [Dkt. # 8], the “Affidavit: Request for Reconsideration” [Dkt. # 9], and

the “Affidavit: Request for Reconsideration-Second Request” [Dkt. # 10] are DENIED. 

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: November 4, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, November 4, 2014, by electronic and/or ordinary mail.

 S/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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