Smith v. Wolfenbarger

Filing 39

OPINION AND ORDER granting 38 Motion to reinstate the habeas petition and ordering the Clerk of the Court to reopen the case to the Court's active docket, amending caption, granting motion to amend petition for writ of habeas corpus, directin g the 38 Amended petition be served upon the respondent and the Michigan Attorney General, and directing the respondent to file a supplemental answer and any additional Rule 5 materials in this case. Signed by District Judge Arthur J. Tarnow. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KEITH BERNARD SMITH,
Petitioner,

Civil No. 2:11-CV-10261
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
ANTHONY STEWART,

Respondent,
____________________________________/
OPINION AND ORDER: (1) GRANTING MOTION TO REINSTATE THE HABEAS
PETITION AND ORDERING THE CLERK OF THE COURT TO REOPEN THE
CASE TO THE COURT'S ACTIVE DOCKET, (2) AMENDING CAPTION, (3)
GRANTING THE MOTION TO AMEND PETITION FOR WRIT OF HABEAS
CORPUS, (4) DIRECTING THAT THE AMENDED PETITION (Dkt. # 38) BE
SERVED UPON THE RESPONDENT AND THE MICHIGAN ATTORNEY
GENERAL, AND (5) DIRECTING RESPONDENT TO FILE A SUPPLEMENTAL
ANSWER AND ANY ADDITIONAL RULE 5 MATERIALS IN THIS CASE
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254, which was held in abeyance to permit Petitioner to return to the state courts
to exhaust additional claims.
Petitioner filed a motion to reinstate the petition and to amend the habeas
petition, which is GRANTED. The Clerk of the Court shall serve a copy of the
amended petition for writ of habeas corpus upon respondent and the Michigan
Attorney General’s Office by first class mail. Respondent shall file a
supplemental answer and the Rule 5 materials within sixty (60) days of the
Court’s order. The caption is amended to reflect the name of Petitioner’s current
warden, Anthony Stewart.
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Federal courts have the power to order that a habeas petition be reinstated
upon timely request by a habeas petitioner, following the exhaustion of state court
remedies. See e.g. Rodriguez v. Jones, 625 F. Supp. 2d 552, 559 (E.D. Mich.
2009). Petitioner alleges in his amended petition that his claims were exhausted
with the state courts. The case is reopened.
The caption in this case is amended to reflect that the proper respondent in
this case is now the warden of the prison where petitioner is currently
incarcerated. See Edwards Johns, 450 F. Supp. 2d 755, 757 (E.D. Mich. 2006);
See also Rule 2(a), 28 foll. U.S.C. § 2254.
Petitioner’s proposed amended habeas petition should be granted because
it advances new claims that may have arguable merit. See e.g. Braden v. United
States, 817 F.3d 926, 930 (6th Cir. 2016).
The Clerk of the Court shall serve a copy of the amended petition for writ of
habeas corpus [Dkt. # 38] and a copy of this Order on Respondent and on the
Attorney General for the State of Michigan by first class mail as provided in Rule
4 of the Rules Governing § 2254 Cases, Rule 4. See Coffee v. Harry, No.
04-71209, 2005 WL 1861943, * 2 (E.D. Mich. Aug. 2, 2005). Respondent shall
file a supplemental answer to the amended petition within sixty days of the
Court’s order. See Erwin v. Elo, 130 F. Supp. 2d 887, 891 (E.D. Mich. 2001); 28
U.S.C. § 2243. 1 Respondent shall provide any additional Rule 5 materials with

1

Respondent filed an answer to petitioner’s original habeas petition on
June 13, 2011 and is therefore only required to file an answer addressing the
2

the answer. See Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002); Rules
Governing § 2254 Cases, Rule 5, 28 U.S.C. foll. § 2254. Petitioner has forty five
days from the receipt of the answer to file a reply brief, if he so chooses. See
Rule 5(e) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254.
ORDER
IT IS ORDERED THAT:
(1) The motion to reinstate the petition is GRANTED. The Clerk of the
Court shall reopen the habeas petition to the Court’s active docket.
(2) The caption of the case is amended.
(3) The motion to amend the petition for writ of habeas corpus is
GRANTED.
(4) The Clerk of the Court shall serve a copy of the amended petition
for writ of habeas corpus [Dkt. # 38], and a copy of this Order on
Respondent and the Attorney General by first class mail.
(5) Respondent shall file a supplemental answer and any additional
Rule 5 materials within sixty (60) days of the date of this order or show
cause why they are unable to comply with the order.
(5) Petitioner shall have forty five days from the date that he receives
the answer to file a reply brief.

s/Arthur J. Tarnow
HON. ARTHUR J. TARNOW
UNITED STATES DISTRICT COURT
DATED: January 10, 2018

claims raised by petitioner in his amended petition.
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