Hardaway v. Robinson

Filing 72

ORDER Conditionally Granting the Writ of Habeas Corpus. (re 71 Appeal Mandate) Signed by District Judge George Caram Steeh. (MBea)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION HOLLAND HARDAWAY, Petitioner, v. CASE NO. 01-CV-70230-DT HONORABLE GEORGE CARAM STEEH KENNY ROBINSON, Respondent. ______________________________/ ORDER CONDITIONALLY GRANTING THE WRIT OF HABEAS CORPUS This matter is pending before the Court on remand from the United States Court of Appeals for the Sixth Circuit. On January 3, 2008, the Court denied petitioner Holland Hardaway’s application for the writ of habeas corpus under 28 U.S.C. § 2254. One of the issues was whether petitioner’s first appellate attorney was ineffective for failing to file a timely appellate brief. The Court determined that appellate counsel’s performance was deficient, but that the deficient performance did not prejudice petitioner. On appeal from the Court’s decision, petitioner argued that (1) the trial judge gave the jury a coercive Allen1 instruction and (2) his appellate attorney was ineffective. The Sixth Circuit Court of Appeals found no merit in petitioner’s first claim, but determined that petitioner was entitled to relief on his second claim. The Court of Appeals stated that appellate counsel’s failure to file a timely brief deprived petitioner of 1 See Allen v. United States, 164 U.S. 492, 501-02 (1896). a direct appeal, which was not cured by the ability to appeal from later state collateral proceedings. The Court of Appeals reversed this Court’s denial of habeas relief and remanded the case with instructions to issue a conditional writ directing the state to afford petitioner a direct appeal. In light of the Court of Appeals decision, the Court hereby GRANTS a conditional writ of habeas corpus on petitioner’s claim that his first appellate attorney was ineffective. The State is ORDERED to release petitioner unless it grants him an appeal of right within sixty (60) days of the date of this order. Dated: June 23, 2011 S/George Caram Steeh GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE CERTIFICATE OF SERVICE Copies of this Order were served upon attorneys of record on June 23, 2011, by electronic and/or ordinary mail and also to Holland Hardaway at Mound Correctional Facility, 17601 Mound Road, Detroit, MI 48212. S/Josephine Chaffee Deputy Clerk 2

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