Timmer v. Campbell
Filing
6
OPINION and ORDER GRANTING the motion for an extension of time. 5 The case is held in abeyance pending petitioners exhaustion of his state court remedies. Petitioner shall file a motion to lift the stay using the same caption and case number withi n ninety (90) days after the conclusion of the state court post-conviction proceedings. It is further ORDERED that upon receipt of a motion to reinstate the habeas petition following exhaustion of state court remedies, the Court may order the Clerk to reopen this case for statistical purposes. Signed by District Judge Arthur J. Tarnow. (McColley, N)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRENT TIMMER,
Petitioner,
v.
Case Number 2:20-CV-13261
Honorable Arthur J. Tarnow
SHERMAN CAMPBELL,
Respondent.
_________________________________/
OPINION AND ORDER GRANTING PETITIONER AN EXTENSION OF
TIME TO FILE HIS AMENDED PETITION (ECF No. 5).
On November 30, 2020, Brent Timmer, (“petitioner”), filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court construed
his pleadings as a “protective petition,” due to the prison lockdown which
prevented petitioner from research and filing a timely habeas petition. The
Court granted petitioner an extension of ninety (90) days from the date that
the prison lockdown ends in the Michigan Department of Corrections and full
prison library privileges are restored to file an amended habeas petition, any
memorandum of law in support of the petition, and any motion to stay the
proceedings pending the exhaustion of additional claims in the state courts.
If petitioner chose to return to the state courts to exhaust additional claims,
he was free at that time to file a motion to stay the proceedings during the
pendency of any state post-conviction proceedings.
Petitioner now claims that he filed a motion for relief from judgment
pursuant to MCR 6.500, and an Application for Leave to Appeal from the
motion for relief from judgment with the Michigan Supreme Court, on June
8, 2021.
Petitioner requests additional time to pursue his state court remedies
and to prepare and file his amended petition.
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 pursue his state court
remedies and then research and file his amended petition on time. This
Court indicated that an additional stay would be granted if petitioner chose
to file a motion for relief from judgment with the state courts. Petitioner is
granted a ninety (90) day extension of time, following the conclusion of the
state court post-conviction proceedings, to file his amended habeas petition.
ORDER
It is ORDERED that the motion for an extension of time is GRANTED.
The case is held in abeyance pending petitioner’s exhaustion of his
state court remedies. Petitioner shall file a motion to lift the stay using the
same caption and case number within ninety (90) days after the
conclusion of the state court post-conviction proceedings. Petitioner is
free at that time to file an amended habeas petition containing the arguments
that he raised before the state courts with respect to his claims.
It is further ORDERED that upon receipt of a motion to reinstate the
habeas petition following exhaustion of state court remedies, the Court may
order the Clerk to reopen this case for statistical purposes.
Dated: July 13, 2021
_s/Arthur J. Tarnow_______________
ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
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