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Petitioner was sentenced on November 24, 1986.

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

______________________________________________________________________

MARSHALL LAIDLAW, #162803, 

Petitioner,

Civil No: 2:08-CV-14031

Honorable Marianne O. Battani

Magistrate Judge R. Steven Whalen

v.

SHIRLEE HARRY, 

Respondent.

_________________________________/

OPINION AND ORDER (1) CONSTRUING PETITIONER’S “NOTICE OF 

APPEAL” AS “MOTION FOR RECONSIDERATION” AND (2)

DENYING MOTION FOR RECONSIDERATION 

Petitioner, Marshall Laidlaw, (“Petitioner”) has filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. §2254. Petitioner, who is currently incarcerated at

the Muskegon Correctional Facility in Muskgeon , Michigan, challenges his convictions in

an Oakland County bench trial for entry without permission, three counts of breaking and

entering an occupied dwelling with intent to commit larceny, assault with intent to commit

sexual penetration, two counts of first-degree criminal sexual conduct, and unlawfully

driving away an automobile.1

 Respondent argued in its motion for summary judgment that

the habeas petition is barred from review on statute of limitations grounds. Petitioner filed

a response claiming that the factual predicate of his habeas claim was not discovered in

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“If an applicant files a notice of appeal, the district judge who rendered the

judgment must either issue a certificate of appealability or state why a certificate should

not issue.” Fed. R. App. P. 22(b)(1); See Castro v. United States, 310 F.3d 900, 901-02

(6th Cir. 2002) (holding that “a district judge must issue or deny a COA if an applicant

files a notice of appeal” without awaiting the filing of an application for a certificate of

appealability). 

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time to meet the statute of limitations requirements despite his efforts to do so. Once it 

was discovered Petitioner claims that he was diligent in filing his habeas petition in a timely

manner. 

On July 9, 2009, the Court issued an “Opinion and Order Granting Respondent’s

Motion for Summary Judgment and Denying a Certificate of Appealability.” Pending before

the Court is Petitioner’s “Notice of Appeal.”2

 Because the Court already has denied a

certificate of appealability, the Court will construe Petitioner’s “Notice of Appeal” as

requesting reconsideration of that denial. 

I. DISCUSSION

A. Motion for Reconsideration 

Motions for reconsideration may be granted when the moving party shows: (1) a

“palpable defect,” (2) by which the court and the parties were misled, and (3) the correction

of which will result in a different disposition of the case. E.D. Mich. L.R. 7.1(g)(3). A

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

Olson v. The Home Depot, 321 F.Supp.2d 872, 874 (E.D. Mich. 2004). 

The Court’s Order denying habeas relief was entered on July 9, 2009. Because

Petitioner had only 10 days to file a motion for reconsideration under Eastern District of

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Federal Rule of Civil Procedure 6(e), which gives a party three additional days to

file a document when the party is required to do so within a specified time period after

service, does not technically apply here because Eastern District of Michigan Local Rule

7.1(g)(1) requires the motion to be filed “10 days after entry of the judgment or order,”

not after service of the order. 

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The July 23, 2009 deadline takes into consideration the weekends of July 11,

2009, July 12, 2009, July 18, 2009, and July 19, 2009. 

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See, Hudson v. Martin, 68 F.Supp.2d 798, 799, n. 2 (E.D. Mich. 1999).

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Michigan Local Rule 7.1(g)(1), intermediate legal holidays and weekend days are excluded

under Federal Rule of Civil Procedure 6(a)3. Therefore, Petitioner was required to submit

his motion for reconsideration on or before July 23, 2009.4

 Because courts have not been

blind to the dilemmas of pro se prisoners and the particular challenges they face in meeting

court deadlines, the Supreme Court formulated a mailbox rule, stating that documents are

considered filed with the court when the document is submitted to prison officials for filing.

Houston v. Lack, 487 U.S. 266, 272 (1988). Therefore, under the mailbox rule, if Petitioner

had given his motion to prison authorities to mail on July 23, 2009, his motion would be

considered timely. 

Petitioner’s “Notice of Appeal” was not dated,5

 and was not received by the Court

until August 6, 2009. Therefore, it is difficult to determine when Petitioner relinquished

control of the appeal notice. As a result, the Court cannot with any degree of certainty

assess whether Petitioner’s motion is untimely, thus waiving his opportunity for

reconsideration.

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B. Certificate of Appealability 

 Even if the Court did not treat Petitioner’s motion for a certificate of appealability as

one of reconsideration or otherwise found that it was timely filed, the Court still denies relief.

 The Court declined to issue a certificate of appealability because, jurists of reason would

not find it debatable whether Petitioner stated a valid claim of the denial of a constitutional

right, or that district court was correct in its procedural ruling. See Slack v. McDaniel, 529

U.S. 473, 484-85 (2000). When a plain procedural bar is present and the district court is

correct to invoke it to dispose of the matter, a reasonable jurist could not conclude either

that the district court erred in dismissing the petition or that the petition should be allowed

to proceed. In such a case, no appeal is warranted. Id.

Petitioner has presented no arguments in support of the Court reconsidering its

decision to decline the issuance of a certificate of appealability. Therefore, Petitioner fails

to demonstrate that the Court’s decision was based upon a palpable defect by which the

Court was misled.

II. CONCLUSION

For the reasons stated above, 

IT IS ORDERED that Petitioner’s “Notice of Appeal” [Dkt. # 13], which the Court has

construed as a “Motion for Reconsideration” is DENIED.

s/Marianne O. Battani 

HONORABLE MARIANNE BATTANI

UNITED STATES DISTRICT COURT

Dated: November 19, 2009

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CERTIFICATE OF SERVICE

I hereby certify that on the above date a copy of this Order was served upon all

parties of record.

s/Bernadette M. Thebolt

Case Manager

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

on this date, November _________, 2009, by electronic and/or ordinary mail.

__________________________

Bernadette Thebolt

Case Manager and Deputy Clerk

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