Keeth v. Brewer
OPINION AND ORDER DENYING AS MOOT THE MOTION FOR AN EXTENSION OF TIME TO FILE THE POST-CONVICTION MOTION FOR RELIEF FROM JUDGMENT WITH THE STATE COURT [#7]. Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:17-CV-11152
HONORABLE GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING AS MOOT THE MOTION FOR AN
EXTENSION OF TIME TO FILE THE POST-CONVICTION MOTION
FOR RELIEF FROM JUDGMENT WITH THE STATE COURT [#7]
Petitioner Herbert Keeth, presently confined at Charles Egeler Reception &
Guidance Center in Jackson, Michigan, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, in which he sought relief from his convictions for
two counts of first-degree criminal sexual conduct and one count of second-degree
criminal sexual conduct. See Dkt. No. 1. On May 12, 2017, 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. See Dkt. No. 5, pp. 5–6 (Pg. ID 69–70). The Court conditioned this
tolling upon Petitioner initiating his state post-conviction remedies within ninety
(90) days of receiving this Court’s order and returning to federal court within
ninety (90) days of exhausting his state court post-conviction remedies. Id.
On August 15, 2017, the Court received a letter from Petitioner, construed as
a motion requesting an extension of time to file his post-conviction motion in the
state courts. See Dkt. No. 7. For the reasons that follow, the motion for an
extension of time to file a post-conviction motion is denied as moot.
A federal district court has the power to extend the stay of a habeas petition
and grant a petitioner an extension of time to file his or her post-conviction motion
in the state courts where the petitioner was “prevented in some extraordinary way”
from filing the motion with the state courts in a timely manner. See Schillereff v.
Quarterman, 304 F. App’x 310, 314 (5th Cir. 2008). Petitioner had ninety (90)
days from the date of the Court’s order, or until August 12, 2017, to timely file his
post-conviction motion with the state courts. See Dkt. No. 5, pp. 5–6 (Pg. ID 69–
70). Petitioner filed a notice with this Court indicating that he had filed his postconviction motion with the state courts on July 28, 2017. Dkt. No. 6. Petitioner
thus filed his 6.500 motion for relief from judgment within the ninety (90) day
time-period that this Court granted to him to initiate his post-conviction
proceedings in the state courts. As Petitioner was not prevented from timely filing,
and indeed did timely file, his state post-conviction motion, his request for an
extension of time is unnecessary.1
Based on the foregoing, IT IS ORDERED that the motion for an extension
of time to file a 6.500 brief in the state courts  is DENIED as moot.
Dated: August 23, 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
August 23, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
To the extent Petitioner is requesting additional time to file a brief in support of
his 6.500 motion, approval from this Court is unnecessary. Petitioner timely filed
his post-conviction motion with the state courts and thus satisfied the requirements
of this Court’s stay and abeyance order. Therefore, Petitioner does not need an
extension of time from this Court to file any supporting briefs or documentation in
support of his 6.500 motion.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?