Rush v. Winn

Filing 15

OPINION and ORDER Granting the Motion to Strike 14 , the Motion to Hold in Abeyance the Petition for a Writ of Habeas Corpus 12 and Denying Without Prejudice the Motion for an Evidentiary Hearing 13 . Signed by District Judge Denise Page Hood. (LSau)

Case 2:20-cv-11540-DPH-PTM ECF No. 15, PageID.132 Filed 11/20/20 Page 1 of 2

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARIUS RUSH,
Petitioner,

Case No. 2:20-CV-11540
HONORABLE DENISE PAGE HOOD

v.
O’BELL WINN,
Respondent.
_________________________________/
OPINION AND ORDER GRANTING THE MOTION TO STRIKE (ECF No.
14) THE MOTION TO HOLD IN ABEYANCE THE PETITION FOR A WRIT
OF HABEAS CORPUS (ECF No. 12) AND DENYING WITHOUT
PREJUDICE THE MOTION FOR AN EVIDENTIARY HEARING (ECF No.
13).
Darius Rush, (“Petitioner”), confined at the Saginaw Correctional
Facility in Freeland, Michigan, filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for firstdegree home invasion, conspiracy to commit first-degree home invasion,
and receiving and concealing stolen property less than $ 200.00. Petitioner
filed a motion hold the petition in abeyance to permit him to return to the state
courts to present additional claims that have not been exhausted with the
state courts and that are not included in his habeas petition. Petitioner also
filed a motion for an evidentiary hearing.

1

Case 2:20-cv-11540-DPH-PTM ECF No. 15, PageID.133 Filed 11/20/20 Page 2 of 2

Petitioner has now filed a motion to strike (ECF No. 14) the motion to
hold the petition in abeyance (ECF No. 12). The motion to strike (ECF No.
14) is granted. The Court will not hold the petition in abeyance (ECF No.12).
The motion for an evidentiary hearing (ECF No. 13) is denied without
prejudice. Petitioner’s request for an evidentiary hearing is premature
because this Court has yet to receive the answer and the Rule 5 materials
from respondent. Once the Court receives the answer and the Rule 5
materials from respondent, the Court will be in a better position to determine
whether an evidentiary hearing is warranted.
ORDER
IT IS HEREBY ORDERED that the motion to strike the motion to hold
the petition in abeyance (ECF No. 14) is GRANTED and the motion to stay
(ECF No. 12) is WITHDRAWN by Petitioner.
It is further ORDERED that the motion for an evidentiary hearing (ECF
No. 13) is DENIED WITHOUT PREJUDICE.
s/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: November 20, 2020

2