UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KENNETH RIDEAUX, 

 

Petitioner, Case No. 2:15-cv-10774

 Hon. Denise Page Hood

v.

MITCH PERRY, 

Respondent.

_______________________________/

ORDER REQUIRING RESPONDENT TO FILE ANSWER TO

PETITIONER’S MOTION FOR RECONSIDERATION [Docket No. 8]

This is a habeas case brought by a state prisoner pursuant to 28 U.S.C. § 2254.

The Court summarily dismissed the petition under 28 U.S.C. § 2244(d) after it

determined that the case was filed after expiration of the one-year statute of

limitations. 

Presently before the Court is Petitioner’s motion for reconsideration. [Docket

No. 8, filed August 12, 2015]. Petitioner asserts that he failed to disclose in his

response to the Court’s show cause order that he still has two post-conviction motions

pending in the state trial court that continue to toll the limitations period and render

the present habeas petition timely filed. 

Local Rule 7.1(h) allows a party to file a motion for reconsideration. The

movant must not only demonstrate a palpable defect by which the court and the parties

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have been misled but also show that a different disposition of the case must result

from a correction thereof. 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).

As explained in the opinion and order dismissing this case, Petitioner’s habeas

application appeared to be untimely filed because 222 days ran on the limitations

period from the time he completed direct review until the time he claims he filed for

state post-conviction review. The Court found that another 272 days ran on the

limitations period from the date the Michigan Supreme Court denied post-conviction

relief on May 27, 2014, until the date he commenced this action on February 24,

2015.

Petitioner contests the second leg of the limitations period, claiming that two

additional post-conviction motions, filed on January 24, 2008, and March 24, 2010,

remain pending in the state trial court. Petitioner asserts that the limitations period

therefore continues to be tolled under 28 U.S.C. § 2244(d)(2). 

Based on the limited record filed by Petitioner and an examination of the state

trial court docket sheet, the Court is unable to determine whether there is merit to

Petitioner’s contention. It appears that the motion to vacate sentence filed on January

24, 2008, occurred prior to Petitioner’s appeal of right and may have been resolved

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as part of the direct review proceeding. The trial court docket sheet confirms that

Petitioner filed a motion on March 24, 2010, but it is impossible to tell whether an

order dated April 19, 2010, disposed of that motion, or whether it can nevertheless

still be regarding as “pending” under § 2244(d)(2).

For the foregoing reasons, IT IS ORDERED that a copy of this opinion and

order be served upon counsel for Respondent, by first-class mail, the Michigan

Attorney General, Appellate Division, 525 West Ottawa - 4th Floor, P.O. Box 30217,

Lansing, Michigan 48909.

IT IS FURTHER ORDERED that Respondent shall file an answer to

Petitioner’s motion for reconsideration within 60 days of the date of this order along

with any portions of the state court record relevant to a determination of the timeliness

of the petition. 

S/Denise Page Hood

Denise Page Hood

United States District Judge

Dated: November 4, 2015

I hereby certify that a copy of the foregoing document was served upon the parties of

record on November 4, 2015, by ordinary mail.

S/Kelly Winslow for 

LaShawn R. Saulsberry

Case Manager Generalist 

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