Boswell v. Gidley

Filing 15

OPINION AND ORDER GRANTING PETITIONERS MOTION TO DEFER A RULING 14 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TYRONE BOSWELL,
Petitioner,

Case No. 14-cv-12705

v.

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

LORI GIDLEY AND DUNCAN MCLAREN,
UNITED STATES MAGISTRATE JUDGE
PATRICIA T. MORRIS

Respondents.
/

OPINION AND ORDER GRANTING PETITIONER’S MOTION TO
DEFER A RULING [14]
On July 9, 2014, Petitioner Tyrone Boswell, presently confined at Kinross
Correctional Facility in Kincheloe, Michigan, filed a pro se habeas corpus petition
under 28 U.S.C. § 2254 See Dkt. No. 1. Petitioner challenged his conviction for
felony murder, MICH. COMP. LAWS § 750.316(1)(b). See id. at 1 (Pg. ID 1). On the
same day, Petitioner filed a motion to hold his habeas petition in abeyance. Dkt.
No. 2. On August 13, 2014, this Court entered an order granting Petitioner’s
motion to hold his habeas petition in abeyance so that he could complete postconviction proceedings in state court and exhaust state remedies for certain new
claims. Dkt. No. 4, p. 4 (Pg. ID 156). The Court also administratively closed the
case. See id.

Petitioner subsequently moved to reopen this case and to amend his original
habeas petition. Dkt. No. 6, p. 1 (Pg. ID 159). On September 2, 2016, the Court
entered an order that re-opened this case, granted Petitioner’s motion to amend his
habeas petition, and ordered Respondent to file an answer to the amended petition
within one hundred eighty days of the Court’s order. Dkt. No. 10, pp. 2–3 (Pg. ID
242–43.) In the same order, the Court stated that Petitioner would be permitted to
file a reply to Respondent’s answer within forty-five days of his receipt of the
answer. Id. at 4 (Pg. ID 244).
On February 3, 2017, Respondent filed an answer to the amended petition
and the Rule 5 materials. Dkt. Nos. 12, 13. Currently before the Court is
Petitioner’s Motion to Defer a Ruling on his case, pending receipt of his Reply, his
Motion for a Fact-Finding Procedure, or a Motion for Summary Judgment. Dkt.
No. 14.
Petitioner mistakenly states in his pending motion that the Court failed to set
a date for his reply to Respondent’s answer. Id. at 2 (Pg. ID 1137). In fact, the
Court stated in its previous order that Petitioner would have forty-five days from
receipt of Respondent’s answer to file a reply. Dkt. No. 10, p. 4 (Pg. ID 244).
Nevertheless, Petitioner states that he has not obtained his General Education
Diploma (GED) and that he is permitted to spend only a few hours a week in the
prison law library. Dkt. No. 14, p. 2 (Pg. ID 1137). The Court, moreover, was
2

unable to address Petitioner’s motion until now, even though Petitioner sought a
deadline of March 30, 2017, in which to file his reply and motions. Under the
circumstances, the Court believes that Petitioner should be given additional time to
file a reply. Accordingly,
IT IS ORDERED that Petitioner’s Motion to Defer a Ruling Pending
Receipt of his Reply, Motion for Fact Finding Procedure, or Motion for Summary
Judgment [14] is GRANTED.
IT IS FURTHER ORDERED that Petitioner shall have forty-five days
from the date of this order to file a reply to Respondent’s answer to the amended
petition. The Court will defer ruling on the habeas petition for at least forty-five
days from the date of this order.
IT IS SO ORDERED.
Dated:

April 6, 2017
s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 6, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

3