Jackson v. Berghuis

Filing 24

OPINION AND ORDER DENYING MOTION TO ORDER THE STATE TRIAL COURT TO ADJUDICATE MOTION FOR RECONSIDERATION 23 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOUGLAS JACKSON,
Petitioner,

Case No. 15-cv-11622

v.

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

MARY BERGHUIS,
Respondent.
/
OPINION AND ORDER DENYING MOTION TO ORDER THE STATE
TRIAL COURT TO ADJUDICATE MOTION FOR RECONSIDERATION
Douglas Jackson (“Petitioner”), confined at the Chippewa Correctional
Facility in Kincheloe, Michigan, filed a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. See Dkt. No. 1. On May 12, 2015, 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. Dkt. No. 5. The Court conditioned this tolling upon Petitioner
initiating his state post-conviction remedies within sixty days (60) of receiving this
Court’s order and returning to federal court within sixty days (60) of completing
the exhaustion of his state court post-conviction remedies. Id. On July 7, 2015,
the Court denied Petitioner’s request for a Court order requiring the warden at the

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Michigan Reformatory to grant him permission to seek assistance from the Legal
Writer Program. See Dkt. No. 8. However, the Court granted Petitioner’s motion
for an extension of time to file his post-conviction motion for relief from judgment
with the state court. See id. On July 7, 2016, this Court denied Petitioner’s motion
for protective relief. See Dkt. No. 22.
Presently before the Court is Petitioner’s Motion to Order the State Court to
Adjudicate the Motion for Reconsideration of the State Court Order Denying
Relief from Judgment. Dkt. No. 23. For the reasons that follow, the motion is
DENIED.
Petitioner claims the state court returned his original post-conviction motion
for relief from judgment pursuant to M.C.R. 6.502(D) because the motion failed to
comply with certain pleading requirements.

Dkt. No. 23, p. 2 (Pg. ID 589).

Petitioner asserts he resubmitted the motion for relief from judgment to comply
with these pleading requirements, but the state trial judge erroneously construed
his motion as a second or successive motion for relief from judgment and denied
him relief under M.C.R. 6.502(G).1 Id. at p. 2–3 (Pg. ID 589–90). Petitioner
claims he filed a motion for reconsideration on December 9, 2016 with the state

M.C.R. 6.502(G) prohibits a criminal defendant from filing a second or
successive motion for relief from judgment except in cases where, after the first
such motion, there is newly discovered evidence or a retroactive change in the law.
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court, and that this motion is still pending in the state trial court. Id. at p. 2 (Pg. ID
589). Petitioner has filed a motion requesting that this Court order the Wayne
County Circuit Court to adjudicate his motion for reconsideration. Id.
It is well settled that “federal courts have no authority to issue writs of
mandamus to direct state courts or their judicial officers in the performance of their
duties.” Seyka v. Corrigan, 46 Fed. App’x 260, 261 (6th Cir. 2002) (quoting
Haggard v. Tennessee, 421 F.2d 1384, 1386 (6th Cir. 1970)). This Court thus
lacks the authority to compel the state court to adjudicate Petitioner’s postconviction motion. See, e.g., Smith v. Thompson, 437 F. Supp. 189, 191 (E.D.
Tenn. 1976), aff’d, 559 F.2d 1221 (6th Cir. 1977).
In an effort to order the Wayne County Circuit Court to adjudicate his
motion, Petitioner could request an order of superintending control from the
Michigan Court of Appeals pursuant to M.C.R. 3.302(D)(1) and M.C.R.
7.203(C)(1). If that request is unsuccessful, Petitioner could seek an order of
superintending control from the Michigan Supreme Court pursuant to M.C.R.
7.303(A)(6).
The Court recognizes that inordinate delay in the adjudication of state court
claims can excuse the exhaustion of state court remedies, particularly where the
state has caused the delay. Workman v. Tate, 957 F. 2d 1339, 1344 (6th Cir. 1992).

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Moreover, a habeas petitioner who makes ‘“frequent but unavailing requests to
have his appeal processed’ in the state court is ‘not required to take further futile
steps in state court in order to be heard in federal court,’ even if the state court
subsequently decides his or her appeal.” Turner v. Bagley, 401 F.3d 718, 726 (6th
Cir. 2005) (quoting Simmons v. Reynolds, 898 F.2d 865, 867–68 (2nd Cir. 1990)
(citing Lucas v. Michigan, 420 F.2d 259, 262 (6th Cir. 1970)).
Petitioner, however, has not shown inordinate delay in the processing of his
state court post-conviction motion for reconsideration. For example, in Workman
the Sixth Circuit excused the habeas petitioner’s failure to exhaust his state postconviction remedies primarily because the petitioner’s motion for post-conviction
relief “languished” in the state courts for more than three years without a decision.
957 F. 2d at 1344. Likewise, in Turner the Sixth Circuit concluded that a federal
district court should have excused a habeas petitioner from the exhaustion
requirement no later than when his direct appeal was dismissed for failure to
prosecute, as the failure was solely attributable to the state and petitioner’s stateappointed attorneys. 401 F.3d at 725–26. Specifically, the state court of appeals
“failed to insure timely representation,” “continually postponed [petitioner’s]
appeal by allowing four different attorneys to withdraw from the case without
filing briefs,” and “allowed petitioner’s appeal to remain on the docket for nearly

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eleven years without meaningful attention.” Id. at 726.
Conversely, Petitioner has failed to show that his motion for reconsideration
has languished for several years without any meaningful attention in the state
courts.

See id.

Petitioner has not alleged that he has made “frequent, but

unavailing requests” to have his post-conviction motion processed. As of the date
he filed the motion presently before the Court, Petitioner’s motion for
reconsideration had only been pending in the state trial court for approximately
eight months.

See Dkt. No. 23.

Moreover, Petitioner is not excused from

exhausting his claims in the state courts because he has not sought relief from the
Michigan state appellate courts to compel the trial court to entertain his postconviction motion for reconsideration. See Washington v. Warden, Ross Corr.
Inst., No. 02-70096, 2003 WL 1867914, at *3 (E.D. Mich. Mar. 21, 2003).
ORDER
Accordingly, it is ORDERED that Petitioner’s Motion to Order the State
Court to Adjudicate the Motion for Reconsideration of the State Court Order
Denying Relief from Judgment [Dkt. #23] is DENIED.

Dated: September 13, 2017

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 13, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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