Nali v. Phillips
Filing
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OPINION and ORDER denying 75 Petitioner's Request for Bond, denying 74 Request for Immediate Consideration of Habeas Petition, and granting Respondent's Request for Additional Time to File a Supplemental Brief. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FRANK NALI,
Petitioner,
Civil Action No. 2:07-cv-15487
v.
HON. ARTHUR J. TARNOW
THOMAS PHILLIPS,
Respondent,
_________________________/
OPINION AND ORDER DENYING PETITIONER’S
REQUEST FOR BOND AS MOOT, DENYING REQUEST FOR IMMEDIATE
CONSIDERATION OF HABEAS PETITION, AND GRANTING RESPONDENT’S
REQUEST FOR ADDITIONAL TIME TO FILE A SUPPLEMENTAL BRIEF
This 28 U.S.C. § 2254 matter is before the Court because Petitioner Frank Nali filed a
“Motion for the Court to Consider Petitioner’s Remaining Issues” [ECF No. 74] and a “Motion
for Immediate Consideration of Request to Remain on Bond Pending Adjudication of the
Remaining Issues” [ECF No. 75]. Both Motions were filed on August 23, 2012. Respondent
filed a Response opposing the Motions on September 5, 2012, and requesting additional time in
which to file a supplemental brief. For the reasons stated, the Court denies Petitioner’s Motion
for bond as moot, denies his request for immediate consideration, but grants Respondent’s
request for additional time in which to file a supplemental brief.
I. Background
On February 26, 2003, Petitioner was convicted of extortion, following a jury trial in the
Circuit Court in Wayne County, Michigan. He was sentenced to four years, two months to
twenty years in prison. The jury convicted Petitioner after hearing evidence that he repeatedly
threatened to send sexually explicit video tapes of his girlfriend to the media and her family and
friends if she broke up with him. Petitioner followed through on his threat. Petitioner’s appeals
were rejected by the state appellate courts. People v. Nali, No. 247843, 2005 WL 3556110
(Mich. Ct. App. Dec. 29, 2005); People v. Nali, 475 Mich. 879, 715 N.W.2d 773 (2006)(Table).
Petitioner’s motion for relief from judgment, filed with the state trial court, also was denied.
People v. Nali, No. 02-13154 (Wayne Cnty. Cir. Ct. Feb. 20, 2007). His applications for leave to
appeal the state trial court’s decision also were denied by the state appellate courts. People v.
Nali, No. 276743 (Mich. Ct. App. June 26, 2007); People v. Nali, 480 Mich. 951, 741 N.W.2d
372 (2007) (Table).
On December 27, 2007, Petitioner filed his Habeas Petition, raising eight separate claims
for relief. The Court appointed counsel for Petitioner, and subsequently, counsel filed a
supplemental brief addressing Petitioner’s insufficient-evidence and ineffective-assistance-ofcounsel claims. On June 29, 2009, the Court granted Petitioner relief on his insufficientevidence claim and denied relief on his ineffective-assistance-of-counsel
claim. The Court, however, did not address Petitioner’s remaining six claims. Nali v. Phillips,
630 F. Supp. 2d 807 (E.D. Mich. 2009).
On June 6, 2012, the Untied States Court of Appeals for the Sixth Circuit reversed the
Court’s decision. Nali v. Phillips, 681 F.3d 837 (6th Cir. 2012). The Sixth Circuit did not
address the claims that the Court did not adjudicate but simply remanded “for entry of an order
in compliance with this decision.” Id. at 853. Therefore, the six claims remain pending before
the Court. The Sixth Circuit’s opinion also directed the Court to order Nali to return to prison to
serve the remainder of his prison sentence. Id. On August 24, 2012, Petitioner stipulated to
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voluntarily surrender himself to the Department of Corrections on August 27, 2012, which he
did. He is currently housed at the Central Michigan Correctional Facility in St. Louis, Michigan.
II. Motion for Request for Bond
Petitioner is requesting that the Court extend his bond. Respondent has filed a Response
in opposition. The Court agrees with Respondent. Petitioner is not entitled to the relief
requested.
To receive bond pending a decision on the merits of a Habeas Petition, a petitioner must
show a substantial claim of law based on the facts surrounding the Petition and the existence of
“some circumstance making the [motion for bail] exceptional and deserving of special treatment
in the interests of justice.” Dotson v. Clark, 900 F.2d 77, 79 (6th Cir. 1990) (citing Aronson v.
May, 85 S.Ct. 3, 5 (1964)). “There will be few occasions where a prisoner will meet this
standard.” Dotson, 900 F.2d at 79. Because a habeas petitioner “is appealing a presumptively
valid state conviction . . . it will indeed be the very unusual case where a habeas petitioner is
admitted to bail prior to a decision on the merits in the habeas case.” Lee v. Jabe, 989 F.2d 869,
871 (6th Cir. 1993).
Petitioner’s request does not contain any exceptional circumstances warranting bond
pending a decision in his habeas case. He only makes a vague reference to his age and
unspecified medical ailments, which he does not even claim are extraordinary. Also, he has
failed to show that he cannot obtain the necessary medical services while incarcerated. The
Department of Corrections has a policy which clearly indicates that prisoners have access to
necessary medical services. See Directive No. 03.04.100.
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Moreover, since Petitioner has voluntarily surrendered himself to the Department of
Corrections, the Court finds that his request is moot.
III. Motion to Consider Remaining Issues
The Court construes this Motion as a Motion requesting that the Court expedite its
decision relative to Petitioner’s remaining issues in his Habeas Petition. Respondent has filed a
response to this Motion, requesting that the Court allow additional briefing with respect to the
remaining issues.
The Court finds that Petitioner has failed to show good cause to expedite a ruling on his
Petition for habeas relief. He has not demonstrated that reviewing this matter in the Court’s
normal course would be prejudicial to his interests or constitute undue delay. Therefore, the
Court will deny Petitioner’s request for the Court to immediately consider the remaining issues
in his Habeas Petition.
However, the Court grants Respondent’s request and will allow him an additional sixty
days from the date of this Order to file a supplemental brief.
IV. Conclusion
Accordingly, IT IS ORDERED that Petitioner’s “Motion for Immediate Consideration
of Request to Remain on Bond Pending Adjudication of the Remaining Issues” [ECF No. 75] is
DENIED as moot and Petitioner’s request to remain on bond is DENIED.
IT IS FURTHER ORDERED that Petitioner’s “Motion for the Court to Consider
Petitioner’s Remaining Issues” [ECF No. 74] also is DENIED. However, the Court GRANTS
Respondent’s request for additional time to file a supplement brief. The Court will review
Petitioner’s arguments in the normal course, after it receives Respondent’s supplemental briefing
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on the remaining issues. Respondent has sixty days from the date of this Order to file his
supplemental brief. Petitioner will have forty-five days from the date Respondent files his
supplemental brief to file a Reply, if he so chooses to do.
S/Arthur J. Tarnow
Arthur J. Tarnow
United States District Judge
Dated: December 17, 2012
I hereby certify that a copy of the foregoing document was served upon parties/counsel of record
on December 17, 2012, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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