Johnson v. Rivard

Filing 11

ORDER addressing petitioner's Letters 9 10 , directing petitioner to inform the court how he wants to proceed (within 30 days), and to keep the Clerk of the Court notified of any changes in his address. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARRYL L. JOHNSON, #561762,
Petitioner,
Case No. 13-13080
Hon. George Caram Steeh

v.
STEVE RIVARD,
Respondent.
______________________________/

ORDER ADDRESSING PETITIONER’S LETTERS
(Dkt. Nos. 9 and 10), DIRECTING PETITIONER TO INFORM
THE COURT HOW HE WANTS TO PROCEED, AND
DIRECTING PETITIONER TO KEEP THE CLERK OF
THE COURT NOTIFIED OF ANY CHANGES IN HIS ADDRESS
On July 18, 2013, petitioner Darryl L. Johnson commenced this case
by filing a pro se habeas corpus petition challenging his Michigan
convictions for assault with intent to commit murder, Mich. Comp. Laws §
750.83, felon in possession of a firearm, Mich. Comp. Laws § 750.224f,
carrying a concealed weapon, Mich. Comp. Laws § 750.227, and
possession of a firearm during the commission of a felony, Mich. Comp.
Laws § 750.227b. See Pet. for Writ of Habeas Corpus, pp. 1-2 (Dkt. #1,
Page ID 1-2). Petitioner stated in his petition that he was sentenced to two
years in prison for the felony-firearm conviction, followed by concurrent
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prison terms of thirty to fifty years for the assault conviction, twenty to forty
years for the felon-in-possession conviction, and fifteen to thirty years for
the concealed weapon conviction. Id., p. 2 (Dkt. #1, Page ID 2).
Petitioner’s sole ground for habeas relief was that the trial court
deprived him of his constitutional right to present a defense by refusing to
instruct the jury on self-defense. Id. Petitioner stated that he raised this
claim in an appeal of right and in an application for leave to appeal in the
Michigan Supreme Court. Id.
In a motion filed on the same day as the habeas petition, petitioner
stated that he wished to pursue additional state-court remedies for a new
claim about his trial attorney’s failure to properly raise a claim of selfdefense. He asked the Court to stay his federal case and to hold his
habeas petition in abeyance while he filed a motion for relief from judgment
in state court. See Mot. to Hold Habeas Pet. in Abeyance, pp. 1-2 (Dkt. #3,
Page ID 18-19).
On October 8, 2013, the Court granted petitioner’s motion to hold his
petition in abeyance and closed this case for administrative purposes. See
Order Granting Pet’r’s Mot. to Hold Pet. in Abeyance and Closing Case
(Dkt. #8). The Court stated in its order that petitioner would have fifty-six
days from the date of the Court's order to file a motion for relief from
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judgment in state court. The Court also directed petitioner to file an
amended petition and a motion to re-open this case within fifty-six days of
exhausting state remedies if he was unsuccessful in state court. Id., pp. 34 (Dkt. #8, Page ID 52-53).
The Court heard nothing further from petitioner until August 7, 2017,
when he filed a letter in this case. The letter appears to have been
intended for this Court, but it is addressed to Michigan’s Third Judicial
Circuit Court Judge Daniel A. Hathaway. See Letter (Dkt. #9, Page ID 54).
The letter states that petitioner filed a motion for relief from judgment in
state court and that he hoped to file an amended habeas corpus petition
and a motion to re-open this case. See id.
An attachment to the letter is a copy of a letter that petitioner
addressed to the Clerk of the Third Judicial Circuit Court in Wayne County,
Michigan on October 6, 2015. The letter asks the Clerk of that Court
whether he or she received petitioner’s motion for relief from judgment,
which Petitioner sent to that court on September 17, 2015. See id.,
Attachment 1 (Dkt. #9, Page ID 55).
A second attachment to petitioner’s letter to this Court is a copy of
petitioner’s letter to the Michigan Supreme Court on January 14, 2016. The
letter to the Michigan Supreme Court asks about the status of petitioner’s
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motion for relief from judgment. See id., Attachment 2 (Dkt. #9, Page ID
56).
On August 28, 2017, this Court received a second letter from
petitioner. Petitioner states in the letter that he was given fifty-six days to
file a motion for relief from judgment in state court and that he filed a timely
motion in 2013, 2014, and 2015. See Letter (Dkt. #10, Page ID 58).
Although the state court apparently maintains that it never received
petitioner’s motions, Petitioner alleges that he has proof of service of the
motions. Petitioner ends his letter to the Court by stating that he is trying to
file an amended habeas corpus petition and a motion to re-open this case.
He has asked the Court to respond to his letter. Id.
An attachment to the letter filed in this Court on August 28, 2017, is
an excerpt of the state trial court’s docket for petitioner’s criminal case. It
shows that petitioner filed a motion for relief from judgment in the state trial
court on September 22, 2015. See id. (Dkt. #10, Page ID 60).
The Court has found a more recent version of the state trial court’s
docket, which indicates that the trial court denied petitioner’s motion for
relief from judgment on October 6, 2016. See People v. Darryl Lenn
Johnson, Wayne Cty. Cir. Ct. Case No. 10-009715-01-FC, at
http://www.3rdcc.org. The Court has no found no record of an appeal from
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the state trial court’s decision on petitioner’s motion for relief from
judgment, and although petitioner states in his letters that he would like the
Court to respond to his letters, he has not said what he wants the Court to
do about this case.
Accordingly, the Court orders petitioner to inform the Court in writing
within thirty (30) days of the date of this order how he wants to proceed. If
he wants to continue pursuing state-court remedies, the Court will continue
to hold his petition in abeyance. On the other hand, if Petitioner wants the
Court to re-open this case and adjudicate any claims for which he has
exhausted state remedies, he should file an amended petition for the writ of
habeas corpus and a motion to re-open this case, using the case name and
number shown in the caption above.
In closing, the Court would like to point out that petitioner was
incarcerated at the St. Louis Correctional Facility in St. Louis, Michigan
when he filed his petition, but that he is currently confined at the Alger
Correctional Facility, N6141 Industrial Park Drive, Munising, Michigan
49862. Petitioner is required to keep the Clerk of the Court informed of any
changes in his address. Consequently, when he responds to this order, he
should also write to the Clerk of the Court and notify the Clerk of his
change of address. If petitioner does not keep the Clerk of the Court
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notified of changes in his address, it is possible that future mailings will not
reach him.
s/George Caram Steeh
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
Dated: April 18, 2018

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 18, 2018, by electronic and/or ordinary mail and also on
Darryl Johnson #561762, Alger Correctional Facility, N6141
Industrial Park Drive, Munising, MI 49862.
s/Barbara Radke
Deputy Clerk

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