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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BERNARD WILLIAM KADE,

Petitioner,

CIVIL NO. 2:09-CV-10822

v. HONORABLE PAUL D. BORMAN

UNITED STATES DISTRICT COURT

KENNETH McKEE,

Respondent.

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OPINION AND ORDER DENYING THE MOTION FOR RECONSIDERATION

On April 23, 2009, this Court summarily dismissed without prejudice petitioner’s application

for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254, on the ground that petitioner had

failed to properly exhaust his claims with the state courts. Kade v. McKee, No. 2009 WL 1099192

(E.D. Mich. April 23, 2009). Petitioner has now filed a motion for reconsideration. For the reasons

stated below, the motion for reconsideration is DENIED.

Eastern District of Michigan Local Rule 7.1(g)(3) provides that in order for a court to grant

a motion for reconsideration, the movant must show (1) a palpable defect; (2) that misled the court

and the parties; and (3) that correcting the defect will result in a different disposition of the case.

Sigma Financial Corp. v. American Intern. Specialty Lines Ins. Co., 200 F. Supp. 2d 710, 715 (E.D.

Mich. 2002). A ‘palpable defect’ is a defect which is considered “obvious, clear, unmistakable,

manifest, or plain.” Id. As a general rule, a court will not grant a motion for rehearing or

reconsideration that merely presents the same issues ruled upon by the court, either expressly or by

reasonable implication. Id. (citing E.D. MICH. L.R. 7.1(g)(3)).

In his motion for reconsideration, petitioner argues that it would be futile for him to return

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to the state courts to exhaust his claims that his OUIL conviction had been improperly enhanced

from a misdemeanor to a OUIL-3rd felony offense by using two prior uncounseled misdemeanor

convictions and that trial counsel was ineffective for failing to object to the enhancement, because

he raised these identical claims in a prior OUIL-3rd felony offense case and the claims were rejected

by the Michigan appellate courts. 

An exception to the exhaustion requirement exists only if there is no opportunity to obtain

relief in the state courts or if the corrective process is so clearly deficient as to render futile any

effort to obtain relief in the state courts. Duckworth v. Serrano, 454 U.S. 1, 3 (1981). An

unfavorable ruling in a state appellate court, in an unrelated case, on the same issue being raised by

a habeas petitioner, does not make exhaustion futile, so as to excuse exhaustion, as petitioner seems

to imply. See Doty v. Lund, 78 F. Supp. 2d 898, 901-03 (N.D. Iowa 1999). At best, the ruling simply

makes petitioner's required presentation to the state courts less likely to succeed. Id. Thus, the mere

fact that the Michigan appellate courts rejected petitioner’s claims in an unrelated case would not

excuse him from exhausting his claims in this case. 

ORDER

IT IS HEREBY ORDERED that the Motion for Reconsideration [Dkt. # 4] is DENIED.

S/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: May 18, 2009

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CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

May 18, 2009.

S/Denise Goodine 

Case Manager

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