United States of America v. Pouncy et al

1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Case No: 23-20262
Plaintiff, 	Hon. F. Kay Behm
U.S. District Judge
v.
D-1 OMAR RASHAD POUNCY,
Defendant.
________________________________/
ORDER DENYING DEFENDANT’S MOTION TO “VOID AND
EXCLUDE ANY REFERENCE AND RELIANCE UPON THE
STATE COURT JUDGMENT” (ECF No. 329)
Before the court is Defendant Omar Pouncy’s (“Pouncy”) motion to
“Void and Exclude Any Reference and Reliance Upon the State Court
Judgment” (ECF No. 329). The government responded (ECF No. 346),
and no timely reply was filed. Pouncy did file an untimely and
improper reply brief several days after it was due (ECF No. 372).1
In 2006, a jury convicted Pouncy of violating several Michigan
laws: four counts of carjacking, four counts of armed robbery, two
1 In addition to being untimely, the brief is 15 pages long, which exceeds LR
7.1(d)(3)’s seven page limit for replies. In the future, the court will not review
overly lengthy briefs that do not comply with the page limit established in LR 7.1
and will not issue a warning before declining to review said brief.
Case 4:23-cr-20262-FKB-CI ECF No. 438, PageID.<pageID> Filed 12/08/25 Page 1 of 7

2
counts of carrying a firearm while committing a felony, and one count of
being a felon in possession of a firearm. He was sentenced to a lengthy
prison term: 562 months for the carjackings and armed robberies, and
24 months for the felony firearm convictions. In 2013, Pouncy filed a
federal habeas action seeking his release. 	Pouncy v. Palmer, No. 21-
1811, 2025 U.S. App. LEXIS 11315, at *1 (6th Cir. May 8, 2025).
This case arises from allegations that during the course of that
habeas action, in which he asserted actual innocence of the carjacking
convictions, Pouncy “devised a scheme to elicit, in conspiracy with
others, false statements and false testimony . . . , and to obstruct
justice, in order to secure his release from state prison, including by
prevailing on his actual innocence claims . . . .” 	See ECF No. 14,
PageID.107.
Pouncy now moves to “void and exclude any reference and
reliance” on his state court convictions.2 	ECF No. 329. The precise
relief sought in Pouncy’s motion is not immediately apparent. At times,
2 His original brief also exceeds the 25-page limit under Local Rule 7.1(d)(3)
by approximately 10 pages. To repeat: in the future, briefs that do not comply with
the page limit in any briefing may be denied or ignored for failure to comply with
the Local Rules; because the court here cautions Defendant, no further warning or
opportunity to amend a noncompliant briefing will be offered in the future.
Case 4:23-cr-20262-FKB-CI ECF No. 438, PageID.<pageID> Filed 12/08/25 Page 2 of 7

3
he appears to seek “release by habeas corpus.” ECF No. 329,
PageID.2239. As far as he seeks that relief, or otherwise seeks to “void”
his state court sentence, the motion is not properly brought in this
criminal action. The court has explained at least once before, and Mr.
Pouncy is well-aware, that kind of attack on the validity of his state
court conviction or sentence may be brought through habeas
proceedings, subject to the various procedural hurdles therein. ECF No.
324, PageID.2212; see, e.g., 13-cv-14695, ECF No. 3, PageID.26-27);
Pouncy v. Palmer, 846 F.3d 144 (6th Cir. 2017); Pouncy v. Palmer, No.
21-1811, 2025 WL 1341850, *9-10 (6th Cir. May 8, 2025).
As far as Pouncy seeks to admit evidence regarding the validity of
his waiver of counsel in his 2006 state convictions, that is not a defense
to his present criminal charges. Nor has Pouncy explained why that is
or would be relevant to any other element of the offenses charged.
To the extent that Pouncy otherwise seeks to preclude the
government’s “reference” or “reliance” on his prior convictions for
purposes of the government’s case-in-chief at trial, nothing in Pouncy’s
brief establishes how any alleged issue with his waiver of counsel in his
state case should legally preclude the government from referring to the
Case 4:23-cr-20262-FKB-CI ECF No. 438, PageID.<pageID> Filed 12/08/25 Page 3 of 7

4
facts of his prior conviction and related proceedings in his present
criminal case.
Turning to the merits of his reply, 3 while his exact theory is
somewhat unclear, he seems to believe that the court in the Eastern
District of Michigan that he sought habeas relief in lacked jurisdiction
over him. His theory appears to be that he invalidly waived the right to
counsel in his original state court proceedings, and therefore every court
since then has lacked jurisdiction to consider his various appeals and
habeas proceedings. ECF No. 372, PageID.2989 (“Defendant’s position
is that since there was no judgment from the Genesee County Circuit
Court, no ‘official proceeding’ could occur in ‘the case of Pouncy v.
Palmer, Case No. 13-cv-14695’ in the United States District Court for
the Eastern District of Michigan based on a complete lacked jurisdiction
over the habeas proceeding”). Therefore, he says, “any proceeding that
took place in ‘the case of Pouncy v. Palmer, Case No. 13-cv-14695’ [was
3 As noted, Pouncy’s reply brief was untimely and exceeds the page limit by
twice the permitted amount. See LR 7.1(d)(3)(b). Given his allegations about his
inability to submit documents to the court, the court considers it this once, but
warns Mr. Pouncy that future untimely filings are his responsibility, and that
alleged defense will not be considered good cause for lateness. Future filings will be
screened for compliance with court rules and, if they fail to comply, may be denied
summarily.
Case 4:23-cr-20262-FKB-CI ECF No. 438, PageID.<pageID> Filed 12/08/25 Page 4 of 7

5
not] an ‘official proceeding.’” 	Id. at PageID.2989. And so for pretrial
purposes, his motion seems to be brought under Rule 12 and boils down
to the following proposition: his habeas proceeding was not an “official
proceeding,” and so he cannot be found guilty of witness tampering
under 18 U.S.C. § 1512(b)(l), which refers to testimony in an “official
proceeding.” 	See ECF No. 373 (Superseding Indictment, Counts II, III).
As far as his reply raises this argument at all, it is procedurally
improper for multiple reasons. First, it is untimely as a motion seeking
dispositive relief; the court has already held that dispositive motions
were due long ago, and he cannot disguise such a motion by putting it in
a reply and slapping a new label on the lid at this very late stage. 	See
ECF No. 284 (holding dispositive motion deadline had passed). Second,
he forfeited these arguments by leaving them out of his original motion.
It is well established that a reply brief is not the proper place to raise
new arguments or facts, and they appear nowhere in his original motion
briefing. 	See United States v. Carson, 560 F.3d 566, 587 (6th Cir.
2009); Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir.
2008); United States v. Campbell, 279 F.3d 392, 401 (6th Cir. 2002)
(“[T]he appellant cannot raise new issues in a reply brief; he can only
Case 4:23-cr-20262-FKB-CI ECF No. 438, PageID.<pageID> Filed 12/08/25 Page 5 of 7

6
respond to arguments raised for the first time in appellee’s brief.”).
A reply brief is an opportunity to respond to arguments made in the
response brief, it does not provide the moving party with a new
opportunity to present a new issue for the court’s consideration.
Scottsdale, 513 F.3d at 553. A non-moving party ordinarily has no right
to respond to the reply brief and so as a matter of litigation fairness and
procedure, such issues are considered waived. 	Id.; see Allen v. Hardrock
HDD, Inc., No. 16-13869, 2018 U.S. Dist. LEXIS 87181, at *18-19 (E.D.
Mich. May 24, 2018).
But even if the arguments had not been waived, Pouncy’s tortured
logic leads nowhere. None of his cited cases stand for the proposition
that a purported jurisdictional defect in a state law conviction would
somehow render his federal habeas case jurisdictionally improper – or
more to the point, that an improper waiver of counsel in a state criminal
trial could somehow render a subsequent habeas proceeding not an
“official proceeding” under the meaning of the witness tampering
statute. Pouncy’s habeas proceeding was an “official proceeding” under
the meaning of 18 U.S.C. § 1512(b)(l), and his arguments to the
contrary are frivolous.
Case 4:23-cr-20262-FKB-CI ECF No. 438, PageID.<pageID> Filed 12/08/25 Page 6 of 7

7
As far as the motion and reply can be read to collaterally
challenge Pouncy’s state court convictions in calculating his sentencing
guidelines, the court agrees that it would be premature to rule on the
scoring of his prior convictions through a pretrial motion such as the
one Pouncy has filed here.4
The motion is DENIED.
SO ORDERED.
Date: December 8, 2025 	s/F. Kay Behm
F. Kay Behm
United States District Judge
4 Finally, Pouncy included in his overlong reply brief a request that “this
Court does not independently engage in research” and stick to “the factual and legal
arguments presented by the parties.” ECF No. 372, PageID.2996. Pouncy has
previously brought up at oral argument his objection to the court doing any legal
research at all on the issues presented. He has objected to, for example, the court
asking him questions about the relevant legal framework. The court overrules his
objections and cautions Defendant; “when a party raises a legal argument, the court
has ‘an independent duty to research and properly apply the law.’” Eckley v.
Goodrich, Civil Action No. 22-cv-01783, 2024 U.S. Dist. LEXIS 147932, at *10 (D.
Colo. Aug. 19, 2024) (quoting Baylon v. Wells Fargo Bank, N.A., 303 F. Supp. 3d
1160, 1165 (D.N.M. 2018); see also Ensey v. Ozzie’s Pipeline Padder, Inc., 2010 U.S.
Dist. LEXIS 158557, 2010 WL 11523525, at *2 n.3 (D.N.M. Apr. 29, 2010) (“it is
certainly the Court’s job to research carefully the legal issues properly presented by
the parties”). When called to respond at oral argument, Pouncy should be prepared
to directly answer the court’s questions; answers that question the court’s authority
to test the mettle of his arguments are unresponsive and unavailing.
Case 4:23-cr-20262-FKB-CI ECF No. 438, PageID.<pageID> Filed 12/08/25 Page 7 of 7