Lavely v. Winn

Filing 14

ORDER requiring Respondent to file an Answer and the Rule 5 Materials within 60 days to 1 Petition for Writ of Habeas Corpus filed by William Lavely. (Petitioner may file a reply brief 45 days from receipt of Answer) Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILLIAM EDWARD LAVELY,
Petitioner,
CIVIL ACTION NO. 2:15-CV-11245
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

vs.
KEVIN LINDSEY,
Respondent.
___________________________/

ORDER REQUIRING RESPONDENT TO FILE AN ANSWER AND THE
RULE 5 MATERIALS WITHIN SIXTY DAYS OF THE COURT’S ORDER
Petitioner’s habeas application was held in abeyance to permit
petitioner to exhaust additional claims. On June 21, 2018, this Court
granted the motion to lift the stay and gave petitioner ninety days to file an
amended habeas petition, if he chose to do so. Respondent was given one
hundred and twenty days from the date that the amended petition was filed,
or the date that the period for filing an amended petition expired, whichever
was later, to file an answer to the original and/or amended petitions.
Petitioner never filed an amended petition. Respondent had one hundred
and twenty days from the expiration of the 90-day period for filing an

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amended petition to file an answer, which would have been no later than
January 17, 2019. Respondent has not filed an answer to the original
petition.
Delays by the state in responding to a petition for writ of habeas
corpus “can, in and of themselves, prejudice a petitioner by creating a bar
to a merits review of a prisoner’s constitutional claims.” Burgess v. Bell, 555
F. Supp. 2d 855, 857 (E.D. Mich. 2008). Moreover, “Rapid adjudication of
habeas petitions is important because...the writ of habeas corpus exists so
that people wrongly detained may obtain freedom.” Wilkerson v. Jones, 211
F. Supp. 2d 856, 860 (E.D. Mich. 2002). This Court has the discretion
under the rules governing responses in habeas corpus cases to set a
deadline for a response to petitioner’s habeas petition. Erwin v. Elo, 130 F.
Supp. 2d 887, 891 (E.D. Mich. 2001). 28 U.S.C. § 2243. In light of the
amount of time that has passed without an answer, respondent shall file an
answer to the petition for writ of habeas corpus within sixty (60) days of this
order. Respondent is also ordered to provide this Court with the Rule 5
materials at the time that it files its answer. See Griffin v. Rogers, 308 F. 3d
647, 653 (6th Cir. 2002); Rules Governing § 2254 Cases, Rule 5, 28 U.S.C.
foll. § 2254. Petitioner shall have forty-five (45) days from the receipt of the

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answer to file a reply brief, if he so chooses. See Rule 5(e) of the Rules
Governing § 2254 Cases, 28 U.S.C. foll. § 2254.
Dated: March 18, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 18, 2019, by electronic and/or ordinary mail and also
on William Lavely #848603, G. Robert Cotton Correctional
Facility, 3500 N. Elm Road, Jackson, MI 49201.
s/Barbara Radke
Deputy Clerk

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