Phillips v. Harry

Filing 9

ORDER Granting 8 Request filed by Simon Phillips. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SIMON PHILLIPS, III,
Petitioner,

Civil No. 2:14-CV-11318
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE

v.
SHIRLEE HARRY,
Respondent,
___________________________________/

OPINION AND ORDER GRANTING PETITIONER’S MOTION FOR A SECOND
ENLARGEMENT OF TIME TO FILE HIS POST-CONVICTION MOTION FOR
RELIEF FROM JUDGMENT WITH THE STATE COURT
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in
which he sought relief from his convictions for assault with intent to do great bodily harm less
than murder, first-degree home invasion, third-degree home invasion, domestic violence, third
offense, discharge of a firearm into a building, and possession of a firearm in the commission of
a felony. This Court held the petition for writ of habeas corpus in abeyance to permit petitioner
to return to the state courts to exhaust additional claims which had not yet been presented to the
state courts. Phillips v. Harry, No. 2:14-CV-11318, 2014 WL 1389325 (E.D. Mich. April 9,
2014). The Court conditioned this tolling upon petitioner initiating his state post-conviction
remedies within sixty days of receiving this Court’s order and returning to federal court within
sixty days of completing the exhaustion of his state court post-conviction remedies.
On June 13, 2014, the Court granted petitioner a sixty day extension of time to file his
post-conviction motion for relief from judgment.
Petitioner has now filed a motion for a second enlargement of time to file his post1

conviction motion for relief from judgment with the state courts. For the reasons that follow, the
Court will grant the motion and give petitioner a forty five day extension of time for petitioner to
file his post-conviction motion for relief from judgment with the state court.
In his motion for an enlargement of time, petitioner claims that he is unable to file his
post-conviction motion for relief from judgment within the time allotted by the Court because
the Director of the Michigan Department of Corrections issued a memorandum on June 27, 2014
cutting the minimum amount of law library time for prisoners from six to four hours a week in
one hour increments, due to the establishment of an Electronic Law Library or ELL. Petitioner
claims that he is not yet proficient in the ELL system and needs additional time to learn to
navigate the ELL system. Petitioner further claims that he gave his legal documents to another
prisoner to review for him but that this prisoner was transferred to another prison and took the
documents with him. Because of these difficulties, petitioner has requested a second extension
of time to file his post-conviction motion.
The Court grants petitioner a forty five day extension of time to file his motion for relief
from judgment with the state trial court. A federal district court has the power to extend the stay
of a habeas petition, particularly where the respondent does not oppose the extension of the stay.
See e.g. Roberts v. Norris, 415 F.3d 816, 819 (8th Cir. 2005). Petitioner appears to have done all
that he could reasonably do to file his state post-conviction motion for relief from judgment on
time, but was “prevented in some extraordinary way” from filing his motion with the state courts
on time. Accordingly, an extension of time should be granted to petitioner. See Schillereff v.
Quarterman, 304 F. App’x. 310, 314 (5th Cir. 2008).
ORDER

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Accordingly, IT IS ORDERED that Petitioner’s “Second Request for an Enlargement of
Time in Accord with F.R.C.P. 6(b)” [Dkt. # 8] is GRANTED. Petitioner may file a motion for
relief from judgment with the state court within forty five (45) days of receipt of this Court’s
order. If petitioner fails to file a motion for relief from judgment with the state courts by that
date, the Court will lift the stay and adjudicate the merits of the claims raised in petitioner’s
original habeas petition.
If petitioner files a motion for relief from judgment, he shall notify this Court that such
motion papers have been filed in state court. The case shall then be held in abeyance pending
the petitioner’s exhaustion of the claims. The petitioner shall re-file his habeas petition with the
federal court within 60 days after the conclusion of the state court post-conviction proceedings.

SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: July 28, 2014
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on July 28, 2014.

s/Deborah Tofil
Case Manager

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