UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EBONY CRYSTAL MALCOM,

Petitioner, Case No.15-11175

v. 

HON. AVERN COHN

ANTHONY STEWART, 

Respondent.

_________________________________/

ORDER DENYING PETITIONER’S MOTION FOR RECONSIDERATION (Doc. 6)

I.

This is a habeas case under 28 U.S.C. § 2254. Petitioner Ebony Crystal Malcom

(Petitioner) filed a pro se petition for a writ of habeas corpus challenging her convictions

for operating a criminal enterprise, two counts of false pretenses with intent to defraud,

nine counts of forgery, nine counts of uttering and publishing, seventeen counts of

identity theft, and one count of recording a false conveyance of realty. On April 22,

2015, the Court dismissed the petition without prejudice because Petitioner failed to fully

exhaust her state court remedies prior to filing the petition. The court also declined to

issue a certificate of appealability. (Doc. 4).

Petitioner has filed a request or motion for reconsideration. For the reasons that

follow, the motion is DENIED. 

II.

E.D. Mich LR 7.1(h)(3) governs motions for reconsideration, providing in relevant

part:

2:15-cv-11175-AC-MKM Doc # 7 Filed 05/21/15 Pg 1 of 3 Pg ID 413
Generally, and without restricting the court’s discretion, the court will not

grant motions for rehearing or reconsideration that merely present the

same issues ruled upon by the court, either expressly or by implication. 

The movant must not only demonstrate a palpable defect by which the

court and the parties have been misled but also show that correcting the

defect will result in a different disposition of the case.

A “palpable defect” is a defect which is obvious, clear, unmistakable, manifest or plain. 

Marketing Displays, Inc. v. Traffix Devices, Inc., 971 F. Supp. 262, 278 (E.D. Mich.

1997)(citing Webster's New World Dictionary 974 (3rd ed. 1988)). 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. Czajkowski v. Tindall &

Associates, P.C., 967 F. Supp. 951, 952 (E.D. Mich. 1997). 

III.

Petitioner says that the Court erred in dismissing the petition on exhaustion

grounds. Petitioner says that she did properly exhaust her sentencing guidelines and

jurisdictional claims with the state courts. Other than conclusory allegations, Petitioner

provides no proof that she properly exhausted all of the claims that she raised in her

petition. Thus, reconsideration is not warranted on this ground.

Petitioner also says that full exhaustion of these claims is sufficient to present the

remaining claims contained in her petition for habeas review. Petitioner’s assertion is

incorrect. Federal district courts must dismiss mixed habeas petitions which contain

both exhausted and unexhausted claims. See Pliler v. Ford, 542 U.S. 225, 230

(2004)(citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). Because Petitioner’s

remaining claims are unexhausted, the petition was properly dismissed. 

2

2:15-cv-11175-AC-MKM Doc # 7 Filed 05/21/15 Pg 2 of 3 Pg ID 414
Overall, Petitioner has not established that the Court erred in dismissing the

petition without prejudice for failure to exhaust. 

SO ORDERED.

 s/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: May 21, 2015

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

record on this date, May 21, 2015, by electronic and/or ordinary mail.

s/Sakne Chami 

Case Manager, (313) 234-5160

3

2:15-cv-11175-AC-MKM Doc # 7 Filed 05/21/15 Pg 3 of 3 Pg ID 415