Mullins v. Barrett
OPINION and ORDER granting 17 Motion to Lift Stay; Amend Petition and denying 18 Motion for an Evidentiary Hearing. Signed by District Judge Gershwin A. Drain. (Ahmed, N)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
LEONARD MULLINS, III,
CASE NO. 15-cv-11962
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
OPINION AND ORDER (1) GRANTING MOTION TO LIFT STAY ; (2) GRANTING
MOTION TO AMEND PETITION FOR WRIT OF HABEAS CORPUS; (3) SETTING
SCHEDULE FOR BRIEFING ON AMENDED PETITION; AND (3) DENYING WITHOUT
PREJUDICE THE MOTION FOR AN EVIDENTIARY HEARING .
On May 27, 2015, Petitioner Leonard Mullins, III, confined at Ojibway
Correctional Facility in Marenisco, Michigan, filed a petition for writ of habeas
corpus with this Court pursuant to 28 U.S.C. § 2254. See Dkt. No. 1. On August 5,
2015, this Court held the petition in abeyance so that Mullins could return to the
state courts to exhaust his new claims. See Dkt. No. 11.
Presently before the Court are Petitioner’s Motion to Lift the Stay ,
Motion to File an Amended Habeas Petition , and Motion for an Evidentiary
Hearing on the Effectiveness of his Trial and Appellate Counsel .
The Court GRANTS both the Motion to Lift the Stay and Motion to Amend
the Habeas Petition . The Court DENIES without prejudice Petitioner’s Motion
for an Evidentiary Hearing .
Accordingly, the Court will amend the case caption, and the Respondent must
file a supplemental answer and any additional Rule 5 materials within one hundred
and eighty (180) days of this Order. Petitioner will have forty-five (45) days from
receipt of the answer to file a reply brief.
Petitioner requested that the Court (1) lift the stay on this case, (2) permit him
to amend the habeas petition, and (3) hold an evidentiary hearing on the amended
petition. The Court will address Petitioner’s requests in turn.
First, following the exhaustion of state court remedies and upon timely request
by a habeas petitioner, federal courts may order that a habeas petition be reinstated.
See, e.g., Rodriguez v. Jones, 625 F. Supp. 2d 552, 559–60 (E.D. Mich. 2009).
Petitioner contends he has exhausted his claims in the state courts. As a result, the
Court will reinstate Petitioner’s case. Accordingly, the Court orders that the case
caption be amended to reflect that the Respondent here is now Kathleen Olson, the
warden of the prison where Petitioner is incarcerated. See Edwards v. Johns, 450 F.
Supp. 2d 755, 757 (E.D. Mich. 2006); see also RULES GOVERNING § 2254 CASES, R.
2(a), 28 U.S.C. FOLL. § 2254.
Second, the Court grants Petitioner’s Motion to Amend the Habeas Petition.
In determining whether to grant an amendment to a habeas petition, courts primarily
consider notice and substantial prejudice to the opposing party. Coe v. Bell, 161
F.3d 320, 341–342 (6th Cir. 1998). Here, there is no evidence of bad faith in
Petitioner’s filing of the motion to amend or evidence of prejudice to Respondent if
the Court were to grant the motion. Thus, the Court will grant Petitioner’s Motion
The Clerk of the Court shall serve both a copy of the amended habeas petition,
Dkt. No. 17, and this Order on Respondent and the Attorney General for the State of
Michigan by first class mail as provided in Rule 4 of the Rules Governing § 2254
Cases. See Coffee v. Harry, No. 04-71209, 2005 WL 1861943, at *2 (E.D. Mich.
Aug. 2, 2005). Respondent shall file a supplemental answer to the amended petition
within one hundred and eighty days (180) of this Order.1 See Erwin v. Elo, 130 F.
Supp. 2d 887, 891 (E.D. Mich. 2001); see also 28 U.S.C. § 2243. When Respondent
On December 3, 2015, the Respondent filed an answer to Petitioner’s original
habeas petition. See Dkt. No. 15. Therefore, in its forthcoming answer, the
Respondent only needs to address the new claims raised in Petitioner’s amended
files its supplemental answer, Respondent must also provide the Court with any Rule
5 materials not already submitted to the Court. See Griffin v. Rogers, 308 F. 3d 647,
653 (6th Cir. 2002). Petitioner has forty-five days (45) from the receipt of the answer
to file a reply brief. See RULES GOVERNING § 2254 CASES, R. 5(e), 28 U.S.C. FOLL.
Finally, the Court will deny without prejudice Petitioner’s motion for an
evidentiary hearing on his amended petition. To determine whether an evidentiary
hearing would help resolve a habeas petition, a court should review the Respondent’s
answer, the transcript and record of the state court proceedings, and any expanded
record. See RULES GOVERNING § 2254 CASES, R. 8(a), 28 U.S.C.
Hence v. Smith, 49 F. Supp. 2d 547, 549 (E.D. Mich. 1999). The Court has not yet
received from the Respondent a supplemental answer or portions of the state court
record. Without these materials, the Court cannot decide whether an evidentiary
hearing on Petitioner’s new claims is necessary. Therefore, following receipt of
these materials, the Court will consider the necessity of an evidentiary hearing.
The Court GRANTS the Petitioner’s Motion to Lift the Stay and Motion to
Amend the Habeas Petition . The Court DENIES without prejudice Petitioner’s
Motion for an Evidentiary Hearing .
IT SO ORDERED.
Dated: November 7, 2017
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 7, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
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