Boykins v. McKee

Filing 20

OPINION AND ORDER Granting 18 Motion to Amend/Correct. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRIAN BOYKINS,
Petitioner,

Civil No. 2:13-CV-12768
HONORABLE SEAN F. COX
UNITED STATES DISTRICT JUDGE

v.
KENNETH McKEE,
Respondent,
_________________________________/

OPINION AND ORDER
GRANTING THE MOTION TO SUPPLEMENT
AND AMEND THE PETITION FOR WRIT OF HABEAS CORPUS
Brian Boykins, (“petitioner”), filed a pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging his conviction for armed robbery, M.C.L.A. 750.529,
kidnapping, M.C.L.A. 750.349, carrying a concealed weapon, M.C.L.A. 750.227, felon in
possession of a firearm, M.C.L.A. 750.224f, possession of a firearm in the commission of a
felony, M.C.L.A. 750.227b, and being a fourth felony habitual offender, M.C.L.A. 769.12.
This Court’s predecessor, Judge Lawrence P. Zatkoff, held the petition in abeyance to permit
petitioner to return to the state courts to exhaust additional claims that had not been included
in the original petition.
Petitioner has filed a motion to amend or supplement the petition to include the claims
that he is currently attempting to exhaust in the state courts by way of a post-conviction
motion for relief from judgment. For the reasons that follow, the motion is GRANTED.

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The decision to grant or deny a motion to amend a habeas petition is within the
discretion of the district court. Clemmons v. Delo, 177 F. 3d 680, 686 (8th Cir. 1999) (citing
Fed.R.Civ.P. Rule 15). Notice and substantial prejudice to the opposing party are the critical
factors in determining whether an amendment to a habeas petition should be granted. Coe v.
Bell, 161 F. 3d 320, 341-342 (6th Cir. 1998).
The Court grants the motion to amend the petition to include the claims that petitioner
is exhausting in the state courts. Petitioner’s proposed amended habeas petition advances
new claims that may have arguable merit and would not unduly prejudice respondent.
Accordingly, the motion to amend should be granted. See Riley v. Taylor, 62 F. 3d 86, 92 (3rd
Cir. 1995).1
IT IS HEREBY ORDERED that the Motion to Supplement and Amend Petition [Dkt.
# 18] is GRANTED.
Dated: March 22, 2016

S/ Sean F. Cox
Sean F. Cox
U. S. District Judge

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Judge Zatkoff’s opinion and order holding the petition in abeyance remains in force.
Petitioner shall file a motion to lift the stay within 60 days of the conclusion of state court postconviction proceedings as per Judge Zatkoff’s order. Failure to do so will result in the Court
lifting the stay and adjudicating the merits of the claims raised in petitioner’s original habeas
petition.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRIAN BOYKINS,
Petitioner,

Civil No. 2:13-CV-12768
HONORABLE SEAN F. COX
UNITED STATES DISTRICT JUDGE

v.
KENNETH McKEE,
Respondent,
_________________________________/

PROOF OF SERVICE
I hereby certify that on March 22, 2016, the foregoing document was served on
counsel of record via electronic means and upon Brian Boykins via First Class mail at the
address below:
BRIAN BOYKINS 187252
MARQUETTE BRANCH PRISON
1960 U.S. HWY 41 SOUTH
MARQUETTE, MI 49855

S/ J. McCoy
Case Manager

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