Marion v. Berghuis
Filing
81
OPINION AND ORDER granting motion to reopen case to the Court's active docket, granating 80 Motion to supplement the remaining issues, and setting deadlines for respondent to file a supplemental answer. Signed by District Judge Victoria A. Roberts. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALLEN MARION,
Petitioner,
v.
Civil No. 2:12-CV-13127
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
JEFFREY WOODS,
Respondent,
____________________________________/
OPINION AND ORDER ON REMAND (1) GRANTING THE MOTION TO
REOPEN THE CASE TO THE COURT’S ACTIVE DOCKET, (2) GRANTING
THE MOTION TO SUPPLEMENT THE REMAINING ISSUES, AND (3)
SETTING DEADLINES FOR RESPONDENT TO FILE A SUPPLEMENTAL
ANSWER
Petitioner, Allen Marion, filed a motion to supplement the remaining issues in his
original petition, which is construed in part as a motion to reopen the case to adjudicate the
remaining issues in his habeas case. For the reasons that follow, the Court orders the Clerk
of the Court to reopen the petition to the Court’s active docket. The Court grants
Petitioner’s motion to file a supplemental brief in support of the remaining issues.
Respondent has ninety days from this order to file a supplemental answer if he chooses.
I. Background
This Court granted Petitioner a conditional writ of habeas corpus, finding that he
was denied the effective assistance of trial counsel because his attorney failed to investigate
and present an alibi defense. Marion v. Woods, 128 F Supp. 3d 987 (E.D. Mich. 2015).
This Court declined to address Petitioner’s remaining claims.
1
The Sixth Circuit reversed the decision and remanded the case “for dismissal of the
§ 2254 petition.” Marion v. Woods, 663 F. App’x. 378 (6th Cir. 2016); cert. den. 137 S.
Ct. 2291 (2017).
This Court reopened the case to adjudicate Petitioner’s remaining claims. (ECF No.
45).
The Court granted Petitioner’s motion to hold the case in abeyance while he sought
a writ of certiorari with the Supreme Court. (ECF No. 47). The Supreme Court denied
Petitioner a writ of certiorari. (ECF No. 48).
Petitioner sought to reinstate the habeas petition and relitigate his original
ineffective assistance of counsel claim. The Court transferred the matter to the United
States Court of Appeals for the Sixth Circuit pursuant to the provisions of 28 U.S.C. §
2244(b). (ECF No. 50). The Sixth Circuit denied Petitioner permission to seek habeas
relief on this claim a second time. (ECF No. 51).
Petitioner has since filed several Rule 60(b) motions or motions to amend the
petition, which have been denied. (ECF Nos. 65, 71, 74). Petitioner was denied permission
to hold the petition in abeyance to exhaust an additional claim in the state courts for which
he was denied permission to file a successive habeas petition. (ECF No. 78). Petitioner,
however, never moved to reopen the case to adjudicate the remaining claims from his
original habeas petition.
Petitioner again seeks to reinstate the habeas petition to adjudicate the remaining
claims in his original habeas petition.
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Federal courts have the power to order that a habeas petition be reinstated in various
contexts. See e.g. Rodriguez v. Jones, 625 F. Supp. 2d 552, 559 (E.D. Mich. 2009). The
Sixth Circuit reversed this Court’s decision to grant habeas relief to Petitioner on his
ineffective assistance of counsel claim; the Court reopens the petition and orders the Clerk
of the Court to reinstate this case to the Court’s active docket to adjudicate Petitioner’s
remaining claims. Petitioner’s remaining claims had not been addressed by this Court and
were not before the Sixth Circuit; this Court construes the Sixth Circuit’s remand order
directing a dismissal of the habeas petition to pertain only to the ineffective assistance of
counsel claim that this Court originally granted habeas relief on. See McGhar v. Koehler,
1988 WL 35193, * 1, 845 F.2d 326 (6th Cir. Apr. 20, 1988).
Petitioner is granted permission to file a supplemental brief. A habeas petitioner is
permitted to assert his or her claims in a supporting brief. See Dye v. Hofbauer, 546 U.S.
1, 4 (2005). Respondent has ninety days from this order to file a supplemental response
brief, if he so chooses.
ORDER
The Court REOPENS the Petition for Writ of Habeas Corpus to the Court’s Active
Docket.
The motion to file a supplemental brief is GRANTED.
Respondent has ninety (90) days from the date of this order file a response brief, if
he so chooses.
Dated: 3/22/2021
s/ Victoria A. Roberts
HON. VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
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