McGinnis v. Harry

Filing 13

ORDER granting in part and denying in part 12 Motion for reconsideration and administratively closing case. Signed by District Judge Stephen J. Murphy, III. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LESLIE MCGINNIS,

Case No. 2:17-cv-13096

Petitioner,

HONORABLE STEPHEN J. MURPHY, III

v.
SHIRLEE HARRY,
Respondent.
/

ORDER GRANTING IN
PART AND DENYING IN PART
PETITIONER'S MOTION FOR RECONSIDERATION
[12] AND ADMINISTRATIVELY CLOSING THE CASE
Petitioner Leslie McGinnis petitioned pro se for the writ of habeas corpus
under 28 U.S.C. § 2254. ECF 1. In 2017, the Court held the petition in abeyance and
administratively closed the case pending the completion of state postconviction
proceedings. ECF 6. Petitioner later filed several letters with the Court that seemed
to assert that Plaintiff had exhausted his state court remedies and wished to reopen
the case. See ECF 7–10. One letter included what looked like an amended petition.
See ECF 9, PgID 194–292. The Court therefore entered an order reopening the case.
ECF 11.
Shortly after, Petitioner moved for reconsideration. ECF 12, PgID 325.
Petitioner explained that he did not intend to reopen the case; he was merely
informing the Court about his difficulties in state court. Id. Petitioner also informed
the Court that a successive motion for relief from judgment is still pending in state
court, and he has not exhausted his state court remedies. Id. at 325–26. Because the
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Court inadvertently misconstrued Petitioner's letters, the Court will grant that part
of Petitioner's motion, and hold the petition in abeyance and administratively close
his case.
Finally, Petitioner also asked the Court to order Respondent to address his
argument about insufficient evidence at his trial. Id. at 332. But the Court will deny
Petitioner's request because the case is administratively closed. Petitioner should
complete the state court process before seeking relief from the Court. See Witzke v.
Bell, No. 07-CV-15315, 2007 WL 4557674, at *1 (E.D. Mich. Dec. 20, 2007) ("[S]tate
courts must first be given a fair opportunity to rule upon Petitioner's habeas claims
before he can present those claims to this Court.").
WHEREFORE, it is hereby ORDERED that the order reopening the case [11]
is VACATED, and the order staying the case [7] is REINSTATED. The petition for
writ of habeas corpus will be held in abeyance pending completion of state
postconviction review proceedings. The tolling is conditioned on Petitioner timely
appealing any denial of his motion for relief from judgment through the Michigan
appellate courts and then refiling his habeas petition—using the case number already
assigned to this case—within sixty days after the state court postconviction
proceedings.
IT

IS

FURTHER

ORDERED

that

the

Clerk

of

Court

ADMINISTRATIVELY CLOSE the case. Nothing in the order will be considered a
dismissal or disposition of this matter. See Sitto v. Bock, 207 F. Supp. 2d 668, 677
(E.D. Mich. 2002).

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IT IS FURTHER ORDERED that on receipt of a motion to reinstate the
habeas petition following exhaustion of state remedies, the Court may order the Clerk
to reopen the case.
SO ORDERED.
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: September 16, 2020
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on September 16, 2020, by electronic and/or ordinary mail.
s/ David P. Parker
Case Manager

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