Love v. Woods

Filing 13

ORDER Granting Counsel Permission to Withdraw as Counsel for Petitioner and Granting Petitioner's 9 MOTION for a Stay. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MENDO LOVE,
Petitioner,

Case No. 15-cv-14497
Hon. Matthew F. Leitman

v.
PAUL KLEE,
Respondent.
__________________________________________________________________/
ORDER GRANTING COUNSEL PERMISSION
TO WITHDRAW AS COUNSEL FOR PETITIONER AND
GRANTING PETITIONER’S MOTION FOR A STAY [ECF #9]
On December 30, 2015, attorney Suzanna Kostovski filed a petition for the writ of
habeas corpus on behalf of Petitioner Mendo Love. (See ECF #1.)

The Petition

challenged Love’s 2012 state-court convictions for first-degree murder, armed robbery,
and felony-firearm on the basis that Love was denied the effective assistance of trial
counsel. (See id.) The State filed an answer to the Petition (see ECF #6), and Ms.
Kostovski filed a reply brief on Love’s behalf (see ECF #8).
On August 22, 2017, Love filed a pro se motion in which he asked the Court to
hold the Petition in abeyance while he returns to state court and pursues state remedies
for a new and unexhausted claim that he is actually innocent of the crimes for which he
was convicted. (See ECF #9.) In that motion, Love also stated that he “no longer has
counsel due to [a] significant Attorney-Client relationship breakdown.” (Id. at Pg. ID
961.)

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Ms. Kostovski had not filed a motion to withdraw as counsel for Love, nor
otherwise informed the Court that she no longer represented Love. Accordingly, the
Court ordered Ms. Kostovski to either (1) file a motion to withdraw as Love’s counsel or
(2) inform the Court in writing that she remains Love’s counsel. (See ECF #10.) In a
recent response to the Court’s order, Ms. Kostovski states that Love and his mother have
decided her services are no longer necessary and that Love wishes to proceed pro per in
this case.

(See ECF #12.)

Accordingly, IT IS HEREBY ORDERED that Ms.

Kostovski is permitted to withdraw as Love’s counsel.
IT IS FURTHER ORDERED that the Clerk of the Court shall modify the docket
for this case to show that Love is now proceeding as his own attorney. A copy of this
order shall be sent to Love and Ms. Kostovski, but future filings in this case must be
mailed to Love instead of Ms. Kostovski.
IT IS FURTHER ORDERED that Love’s motion to hold his Petition in
abeyance pending exhaustion of state remedies for his new claim (ECF #9) is
GRANTED, and his current claim is held in abeyance. “District courts . . . ordinarily
have authority to issue stays where such a stay would be a proper exercise of discretion,”
Rhines v. Weber, 544 U.S. 269, 276 (2005), and Love arguably has shown “good cause”
for his failure to exhaust state remedies for his new claim. He purports to have new
evidence of actual innocence. Furthermore, the new claim is potentially meritorious, and
there is no indication that Love is engaged in intentionally dilatory litigation tactics.
Thus, it is not an abuse of discretion to grant a stay.

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IT IS FURTHER ORDERED that Love shall file a motion for relief from
judgment in the state trial court within sixty (60) days of the date of this order. If he is
unsuccessful in state court and wishes to return to this Court, he shall file a motion to reopen this case and an amended petition for the writ of habeas corpus, using the same
caption and case number that appear on this order. The motion and amended petition
must be filed within sixty (60) days of exhausting state remedies for Love’s new claim.
The Court expresses no opinion on whether any claims presented in an amended petition
will be barred by the one-year statute of limitations, 28 U.S.C. § 2244(d), and any failure
to comply with the conditions of this stay could result in the dismissal of this case.
Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014).
IT IS FURTHER ORDERED that the Clerk of Court shall close this case for
administrative purposes. Nothing in this order should be construed as an adjudication of
Love’s current claim regarding trial counsel.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: February 1, 2018

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on February 1, 2018, by electronic means and/or ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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