Opinion
Civil No. 01-CV-71206-DT
October 8, 2002
OPINION AND ORDER DENYING PETITIONER'S MOTION FOR REHEARING
On September 11, 2002, this Court issued an opinion and order denying the petition for writ of habeas corpus in the above matter. Petitioner has now filed a motion for rehearing, which this Court construes as a motion for reconsideration. For the reasons stated below, the motion for rehearing is DENIED.
U.S. Dist.Ct. Rules, E.D. Mich. 7.1(h) allows a party to file a motion for reconsideration. However, 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. Id.;See also Czajkowski v. Tindall Associates, P.C., 967 F. Supp. 951, 952 (E.D. Mich. 1997). The movant shall not only demonstrate a palpable defect by which the Court and the parties 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).
In his motion for rehearing, petitioner claims that this Court incorrectly assessed the merits of part of his ineffective assistance of counsel claim involving the allegation that trial counsel failed to challenge the identification of petitioner at a photo showup, because petitioner was readily available for a corporeal lineup. Petitioner claims that the Court misconstrued this claim by focusing on whether petitioner was actually in custody at the time that the photographic showup was conducted by police.
Petitioner's argument is without merit. The Court rejected this part of petitioner's ineffective assistance of counsel claim for several reasons. First, this Court noted that contrary to petitioner's allegation, his trial counsel did raise the issue at a posttrial suppression hearing, albeit briefly, whether petitioner was reasonably available for a corporeal lineup. Moreover, this Court was aware that under Michigan law, identification by photograph should not be used "when a suspect is in custody or when he can be compelled by the state to appear at a corporeal lineup." People v. Kurylczyk, 443 Mich. 289, 298, n. 8; 505 N.W.2d 528 (1993); People v. Strand, 213 Mich. App. 100, 104; 539 N.W.2d 739 (1995). However, in addition to observing that petitioner was not in custody at the time of the photographic lineup, this Court also noted that since petitioner was not under arrest for this offense, he could not be compelled to participate in a corporeal lineup. People v. Strand, 213 Mich. App. at 104. This Court therefore rejected petitioner's ineffective assistance of counsel claim not only on the basis that he was not in custody at the time of the photographic lineup, but also because he could not be compelled to participate in such a lineup.
The Court will therefore deny petitioner's motion for rehearing, because petitioner is merely presenting issues which were already ruled upon by this Court, either expressly or by reasonable implication, when the Court rejected petitioner's ineffective assistance of counsel claim and denied his petition for writ of habeas corpus. Hence v. Smith, 49 F. Supp.2d 547, 553 (E.D. Mich. 1999).
ORDER
Based upon the foregoing, IT IS ORDERED that the motion for rehearing is DENIED.