Wilburn v. LeSatz
OPINION and ORDER Granting 17 Petitioner's Motion for an Extension of Time to File his Post-Conviction Motion for Relief from Judgment With the State Court. Signed by District Judge Denise Page Hood. (LSau)
Case 2:18-cv-10253-DPH-PTM ECF No. 19, PageID.1538 Filed 11/20/20 Page 1 of 2
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MARVIN LAMAR WILBURN,
Case Number 2:18-CV-10253
HONORABLE DENISE PAGE HOOD
OPINION AND ORDER GRANTING PETITIONER’S MOTION FOR AN
EXTENSION OF TIME TO FILE HIS POST-CONVICTION MOTION FOR
RELIEF FROM JUDGMENT WITH THE STATE COURT
Marvin Wilburn, (“Petitioner”), filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The petition was held in abeyance so that
petitioner could return to the state courts to exhaust additional claims. Petitioner
was given sixty days to initiate post-conviction proceedings in the state trial court
to exhaust these claims.
Petitioner has filed a motion for an extension of time to file the postconviction motion for relief from judgment with the state trial court.
Petitioner claims that he needs the assistance of a prison paralegal from the
Legal Writers’ Program to help him research, write, and file his post-conviction
motion for relief from judgment. Petitioner claims that the Covid-19 Pandemic has
limited his ability to confer with his assigned prison paralegal in prison to prepare
his post-conviction motion.
Case 2:18-cv-10253-DPH-PTM ECF No. 19, PageID.1539 Filed 11/20/20 Page 2 of 2
A federal district court has the power to extend the stay of a habeas petition,
particularly where the respondent does not oppose the extension of the stay. See
e.g. Roberts v. Norris, 415 F.3d 816, 819 (8th Cir. 2005). Petitioner did all that he
could reasonably do to file his state post-conviction motion for relief from judgment
on time, but was “prevented in some extraordinary way” from filing the motion with
the state trial court on time, in part, because of the various restrictions placed on
prisoners within the Michigan prison system due to the COVID-19 Pandemic.
Accordingly, an extension of time should be granted to petitioner. See Schillereff
v. Quarterman, 304 F. App’x 310, 314 (5th Cir. 2008).
The Court grants petitioner a ninety day extension of time from the date of
this order to initiate post-conviction proceedings in the state courts. Petitioner is
still required to return to federal court within sixty days of completing the exhaustion
of state court post-conviction remedies.
IT IS HEREBY ORDERED THAT:
The motion for an extension of time to file the post-conviction motion
(ECF No. 17) is GRANTED. Petitioner has ninety (90) days from the
date of this order to file his post-conviction motion with the state trial
s/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: November 20, 2020
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