Pokladek v. Burton

Filing 13

ORDER denying 7 Request for Release, denying 8 Motion to Strike; denying 10 Motion for Summary Judgment and Ordering Respondent to File State Court Transcript for September 4, 2013. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL L. POKLADEK,
Petitioner,
CASE NO. 14-13602
v.
DWAYNE BURTON,

PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE

Respondent.
_________________________________/
ORDER DENYING PETITIONER’S REQUEST
FOR IMMEDIATE RELEASE (ECF No. 7),
DENYING HIS MOTION TO STRIKE (ECF No. 8),
DENYING HIS MOTION FOR SUMMARY JUDGMENT (ECF No. 10),
AND ORDERING RESPONDENT TO FILE THE STATE COURT
TRANSCRIPT FOR SEPTEMBER 4, 2013
Petitioner Michael L. Pokladek filed a pro se habeas corpus petition on September
15, 2014. The pleading challenges Petitioner’s plea-based conviction for attempted
fleeing and eluding a police officer, third degree. See Mich. Comp. Law
§257.602a(3)(a). The trial court sentenced Petitioner to probation for the crime.
Petitioner subsequently violated the conditions of probation and apparently pleaded guilty
to the charge of violating the conditions of probation. The trial court then sentenced
Petitioner to imprisonment for six to thirty months.
Petitioner’s sole ground for relief in the habeas petition is that the state trial court
failed to comply with a court rule at a hearing on the charge that he violated the
conditions of probation. Petitioner contends that, as a result of the trial court’s omissions,

this Court is precluded from finding that his guilty plea was voluntary, understanding,
and accurate.
On March 23, 2015, respondent Dwayne Burton filed an answer to the habeas
petition. He argues that Petitioner’s claim is not cognizable on habeas review because it
is rooted in state law and that the Michigan Court of Appeals reasonably determined that
Petitioner’s claim is meritless. Currently before the Court are Petitioner’s request for
immediate release from prison (ECF No. 7), his motion to strike Respondent’s answer
(ECF No. 8), and his motion for summary judgment (ECF No. 10). Respondent has not
filed an answer to Petitioner’s motions or request.
I. The Request for Immediate Release and Motion to Strike (ECF Nos. 7 and 8)
In his request for release from prison and in his motion to strike, Petitioner claims
Respondent’s answer to the petition is missing the even-numbered pages. Petitioner
asserts that he cannot be expected to file a reply to the answer without the missing pages.
Petitioner also asserts that Respondent is being deceitful and that counsel for Respondent
violated Federal Rule of Civil Procedure 11(b) and 28 U.S.C. § 1746 by not declaring
under penalty of perjury that his answer to the petition is true and correct.
Petitioner is not entitled to the relief he seeks because counsel for Respondent
notified Petitioner in a letter dated April 14, 2015, that he was mailing a complete copy of
his answer to Petitioner. See Letter to Michael Pokladek, ECF No. 9. Petitioner, in fact,
concedes in his motion for summary judgment that Respondent forwarded a corrected
copy of his answer to him. See Mot. for Summary Judgment, ECF No.10, page 1.
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Furthermore, although habeas petitioners are required to sign their petitions “under
penalty of perjury,” nothing in the habeas rules requires the respondent to sign his or her
answer under penalty of perjury. Cf. Habeas Rule 2(c)(5) with Rule 5(b), (c), and (d).
By presenting his signed answer to the Court, counsel for Respondent certified that, to the
best of his knowledge, information, and belief his pleading was being presented for a
proper purpose and that his defenses were warranted. Fed. R. Civ. P. 11(b)(1) and (2).
The Court therefore denies Petitioner’s motion to strike Respondent’s answer (ECF No.
8).
The Court denies Petitioner’s request for immediate release from prison (ECF No.
7) for the same reasons and for the additional reason that the request appears to be moot.
On June 9, 2015, Petitioner notified the Court that he has been released on parole and is
now living at an address in Grosse Pointe Woods, Michigan. See Notice of Change of
Address, ECF No. 11.
II. The Motion for Summary Judgment (ECF No. 10)
In his motion for summary judgment, Petitioner challenges Respondent’s
comment in his answer to the petition that “the September 4, 2013 transcript will reflect a
lawful plea colloquy, dispelling Pokladek’s claims.” Answer in Opp’n to Pet. for Writ of
Habeas Corpus, ECF No. 5, page 24. Petitioner correctly points out that there is no
certified record before the Court of the September 4, 2013, plea proceeding.
A party is entitled to summary judgment if he “shows that there is no genuine
dispute as to any material fact and [he] is entitled to judgment as a matter of law.” Fed.
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R. Civ. P. 56(a). “In making that determination, a court must view the evidence ‘in the
light most favorable to the opposing party.’ ” Tolan v. Cotton, 134 S. Ct. 1861, 1866
(2014) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970)).
Here, there is a genuine dispute of fact as to whether Petitioner pleaded guilty
voluntarily and knowingly. Respondent, moreover, states in his answer to the petition
that he has ordered the transcript for September 4, 2013, and will file it with an amended
answer to the petition once it is received. Answer in Opp’n to Pet. for Writ of Habeas
Corpus, ECF No. 5, page 23. The Court therefore denies Petitioner’s motion for
summary judgment (ECF No. 10). The Court nevertheless orders Respondent to file the
transcript for the state court proceeding held on September 4, 2013, within twenty-eight
days of the date of this order.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: November 6, 2015

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
November 6, 2015.
s/Deborah Tofil
Deborah Tofil
Case Manager [phone]

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