Gaona v. Rivard

Filing 11

ORDER granting 10 Motion for Reconsideration. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

YNDALECIO GAONA, JR.,
Case Number: 2:13-CV-13204
HONORABLE VICTORIA A. ROBERTS

Petitioner,
v.
STEVE RIVARD,
Respondent.
/

ORDER GRANTING PETITIONER’S MOTION FOR RECONSIDERATION
(ECF NO. 10)1
Petitioner Yndalecio Gaona, Jr., is a state inmate at the Lakeland Correctional
Facility in Coldwater, Michigan. He filed a pro se petition for a writ of habeas corpus
challenging his convictions for assault with intent to commit murder and possession of a
firearm during the commission of a felony.
The Court granted a stay in 2003 to allow Petitioner to exhaust state court
remedies. (ECF No. 5). In October 2016, the Court granted Petitioner an enlargement of
time to comply with the terms of the stay. (ECF No. 9). Now before the Court is
Petitioner’s Motion for Reconsideration of Order Granting Petitioner’s Motion for
Enlargement of Time to File Motion to Lift Stay. (ECF No. 10).
The Court’s stay order required Petitioner to file a motion for relief from judgment
with the state trial court within sixty days from the Court’s order and to file a motion to
lift the stay and an amended petition within sixty days after the conclusion of the state

court proceedings. In his motion for an enlargement of time, Petitioner states that, after
the trial court denied his motion for relief from judgment, he mailed an application for
leave to appeal to the Michigan Court of Appeals, but learned two years later that the
application was never received by the court of appeals. See Petitioner’s Motion for
Enlargement of Time at 6, ECF No. 8, Pg. ID 77. Petitioner sought a continuation of the
stay while he asked the trial court to reissue its order denying his motion for relief from
judgment so that the time for filing an application for leave to appeal in the Michigan
Court of Appeals would begin anew. The Court granted the motion for the limited
purpose of allowing Petitioner to file, within sixty days, a motion asking the trial court to
reissue its order denying his motion for relief from judgment. The Court ordered that, if
the trial court denied the motion, Petitioner had sixty days from that date to move to
reopen this proceeding. The trial court denied Petitioner’s motion to reissue its order.
Petitioner now asks the Court to allow him additional time to seek relief from the
Michigan Court of Appeals and Michigan Supreme Court, instead of immediately seeking
leave to reopen the habeas proceeding. It is unclear whether the trial court’s decision is
appealable under state law, but the Court will not decide that issue of state law. The
Court will allow Petitioner time to seek leave to appeal in the Michigan Court of Appeals
and Michigan Supreme Court.
The Court GRANTS Petitioner’s Motion for Reconsideration (ECF No. 10), and
allows Petitioner SIXTY DAYS from the conclusion of state court review to file a motion
to lift the stay and an amended petition. This case remains closed for administrative
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purposes.

S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: August 9, 2017

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