UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ALLEN ROY BRONTKOWSKI,

Petitioner, Civil No. 2:15-CV-11073

HONORABLE ARTHUR J. TARNOW

v. UNITED STATES DISTRICT JUDGE

LORI GIDLEY,

Respondent,

_________________________/

OPINION AND ORDER DENYING THE 

MOTION TO ALTER OR AMEND JUDGMENT

On April 10, 2015, the Court summarily dismissed without prejudice the

petition for writ of habeas corpus that had been filed by petitioner pursuant to 28

U.S.C. § 2254, on the ground that petitioner failed to exhaust six claims that he

raised as “new issues” in his petition. The Court also denied petitioner a

certificate of appealability, but granted petitioner leave to appeal in forma

pauperis. Brontkowski v. Gidley, No. 2:15-CV-11073, 2015 WL 1611272 (E.D.

Mich. Apr. 10, 2015) 

Petitioner has filed a motion for a new trial under Rule 59(a), which is in

reality a motion to alter or amend judgment. For the reasons that follow, the

motion is DENIED.

A motion to alter or amend judgment brought by a habeas petitioner

pursuant to Rule 59 (e) may properly be analyzed as a motion for reconsideration

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pursuant to Local Rule 7.1 of the Eastern District of Michigan. Hence v. Smith, 49

F. Supp. 2d at 550. U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a

motion for reconsideration. A motion for reconsideration should be granted if the

movant demonstrates a palpable defect by which the court and the parties have

been misled and that a different disposition of the case must result from a

correction thereof. Ward v. Wolfenbarger, 340 F. Supp. 2d 773, 774 (E.D. Mich.

2004); Hence v. Smith, 49 F. Supp. 2d at 550-51 (citing L.R. 7.1(g)(3)). A motion

for reconsideration which merely presents “the same issues ruled upon by the

Court, either expressly or by reasonable implication,” shall be denied. Ward, 340

F. Supp. 2d at 774.

Petitioner claims that this Court erred in ruling that his claims were

unexhausted. Petitioner points to the fact that he raised two of these claims in his

application for leave to appeal to the Michigan Supreme Court. 

Raising a claim for the first time before the state courts on discretionary

review does not amount to a “fair presentation” of the claim to the state courts for

exhaustion purposes. See Castille v. Peoples, 489 U.S. 346, 351 (1989). 

Because petitioner failed to present these two claims on his direct appeal with the

Michigan Court of Appeals, his subsequent presentation of these claims to the

Michigan Supreme Court does not satisfy the exhaustion requirement for habeas

purposes. See Skinner v. McLemore, 425 Fed. Appx. 491, 494 (6th Cir. 2011);

Farley v. Lafler, 193 Fed.Appx. 543, 549 (6th Cir. 2006). 

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More importantly, petitioner does not argue that he exhausted the other

four claims that this Court previously found to be unexhausted. Federal district

courts must dismiss mixed habeas petitions which contain both exhausted and

unexhausted claims. Pliler v. Ford, 542 U.S. 225, 230 (2004)(citing Rose v.

Lundy, 455 U.S. 509, 510, 522 (1982)). 

Petitioner’s motion to alter or amend judgement and/or motion for

reconsideration will be denied, because petitioner is merely presenting issues

which were already ruled upon by this Court, either expressly or by reasonable

implication, when the Court summarily dismissed the petition for writ of habeas

corpus and denied petitioner a certificate of appealability. See Hence v. Smith, 49

F. Supp. 2d at 553. 

IT IS ORDERED that “The Motion For a New Trial Rule 59(a)” [Dkt. # 8} is

DENIED. 

S/Arthur J. Tarnow 

Dated: March 10, 2016 HON. ARTHUR J. TARNOW

SENIOR UNITED STATES DISTRICT JUDGE

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