Threat v. Harry
OPINION AND ORDER granting motion to amend petition for writ of habeas corpus, ordering that the original 1 Petition for writ of habeas corpus and 6 Amended petition be served upon the respondent and the Michigan Attorney General, and directing respondent to file an answer and Rule 5 materials. Signed by District Judge Paul D. Borman. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CIVIL NO. 2:17-CV-12465
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER: (1) GRANTING THE MOTION TO AMEND
PETITION FOR WRIT OF HABEAS CORPUS, (2) ORDERING THAT THE
ORIGINAL AND THE AMENDED PETITIONS (Dkts. # 1, # 6) BE SERVED
UPON THE RESPONDENT AND THE MICHIGAN ATTORNEY
GENERAL, AND (3) DIRECTING RESPONDENT TO FILE AN ANSWER
AND THE RULE 5 MATERIALS IN THIS CASE
Robert Threat, (“Petitioner”), confined at the West Shoreline Correctional
Facility in Muskegon Heights, Michigan, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges
his conviction and sentence for second-degree criminal sexual conduct and being a
fourth felony habitual offender. Petitioner has also filed additional documentation
raising additional claims, which is construed as a motion to amend the habeas
petition. The motion to amend the petition is granted. The Clerk of the Court shall
serve a copy of the petition for writ of habeas corpus and the amended petition for
writ of habeas corpus upon respondent and the Michigan Attorney General’s
Office by first class mail. Respondent shall file an answer to the petition and the
amended petition and the Rule 5 materials within one hundred and eighty (180)
days of the Court’s order.
The Court grants petitioner’s motion to amend his habeas petition. Notice
and substantial prejudice to the opposing party are the critical factors in
determining whether an amendment to a habeas petition should be granted. Coe v.
Bell, 161 F.3d 320, 341-342 (6th Cir. 1998). The motion to amend the petition is
granted, because there is no evidence of bad faith on petitioner’s part in bringing
the motion to amend or prejudice to respondent if the motion is granted. See
Gillette v. Tansy, 17 F.3d 308, 313 (10th Cir. 1994).
The Clerk of the Court shall serve a copy of the habeas petition [Dkt. # 1], a
copy of the amended petition for writ of habeas corpus [Dkt. # 6], and a copy of
this Order on Respondent and on the Attorney General for the State of Michigan by
first class mail as provided in Rule 4 of the Rules Governing § 2254 Cases, Rule 4.
See Coffee v. Harry, No. 04-71209, 2005 WL 1861943, p. 2 (E.D. Mich. Aug. 2,
2005). Respondent shall file an answer to the petition and the amended habeas
petition within one hundred and eighty days of the Court’s order. See Erwin v. Elo,
130 F. Supp. 2d 887, 891 (E.D. Mich. 2001); 28 U.S.C. § 2243. 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 has forty five days from the receipt of the 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.
IT IS ORDERED THAT:
(1) The motion to amend the petition for writ of habeas corpus is
(2) The Clerk of the Court shall serve a copy of the petition for writ of
habeas corpus [Dkt. # 1], a copy of the amended petition for writ of
habeas corpus [Dkt. # 6], and a copy of this Order on Respondent and the
Attorney General by first class mail.
(5) Respondent shall file an answer and produce the Rule 5 materials
within one hundred and eighty (180) days of the date of this order or
show cause why they are unable to comply with the order.
(6) Petitioner shall have forty five days from the date that he receives
the answer to file a reply brief.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 12, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on
September 12, 2017.
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