Jackson v. Smith

Filing 19

OPINION AND ORDER GRANTING PETITIONER AN EXTENSION OF TIME TO MOVE TO REOPEN HIS CLOSED HABEAS CASE AND TO RE-FILE AN AMENDED PETITION FOR WRIT OF HABEAS CORPUS WITH THIS COURT. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MICHAEL JACKSON,
Case No. 12-cv-11463

Petitioner,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
WILLIE SMITH,

UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND

Respondent.
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OPINION AND ORDER GRANTING PETITIONER AN EXTENSION OF TIME TO MOVE
TO REOPEN HIS CLOSED HABEAS CASE AND TO RE-FILE AN AMENDED PETITION
FOR WRIT OF HABEAS CORPUS WITH THIS COURT
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §
2254, in which he sought relief from his convictions for felon in possession of a
firearm, possession of a short barreled shotgun, and two counts of felony-firearm.
On June 5, 2013, this Court held the petition for writ of habeas corpus in abeyance
to permit Petitioner to return to the state courts to exhaust additional claims which
had not yet been presented to the state courts. The Court conditioned this tolling
upon Petitioner initiating his state post-conviction remedies within sixty days of
receiving this Court’s order and returning to federal court within sixty days of
completing the exhaustion of his state court post-conviction remedies. Jackson v.
Smith, No. 4:12-CV-11463, 2013 WL 2447783 (E.D. Mich. June 5, 2013).

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Petitioner has sent a letter to the Court, which was received by the Clerk’s
Office on May 17, 2016. Dkt. No. 15. Petitioner claims that he exhausted his state
court remedies on November 25, 2014. Petitioner further claims that he re-filed an
amended petition for writ of habeas corpus with the Clerk’s Office in Flint,
Michigan on December 1, 2014. Petitioner claims that the Clerk’s Office in Flint,
Michigan confirmed to Petitioner’s fiancée that they received a copy of the
amended habeas petition, but the docket sheets for Case # 4:12-CV-11463 do not
show that any amended petition was ever filed with the Court. Petitioner has
attached to his letter copies of his expedited legal mail from the Michigan
Department of Corrections which show that pleadings were sent to the United
States District Court in Flint, Michigan on December 1, 2014, although the
documents do not indicate what case number these pleadings were intended for.
Petitioner acknowledges that he has another habeas case pending before Judge
Linda V. Parker but insists that the pleadings that he gave to the Michigan
Department of Corrections on December 1, 2014 were the amended habeas petition
meant for this case.
This Court has inquired with the Clerk’s Office concerning the whereabouts
of Mr. Jackson’s amended habeas petition but they have been unable to locate any
such pleadings.

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For the reasons that follow, the Court will grant Petitioner a sixty day
extension of time to move to reopen his habeas petition and to re-file his amended
petition for writ of habeas corpus with this Court.
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). In the present case,
Petitioner appears to have done all that he could reasonably do to re-file his habeas
petition with this Court following the exhaustion of his state court remedies, but
was “prevented in some extraordinary way” from re-filing his petition with this
Court on time.

Accordingly, an enlargement of time should be granted to

Petitioner. See Schillereff v. Quarterman, 304 F. App’x 310, 314 (5th Cir. 2008).
ORDER
IT IS HEREBY ORDERED that Petitioner is GRANTED an extension of
time to move to reopen his habeas case and to re-file his amended habeas petition
with the Court. Petitioner shall have sixty (60) days from the date of this order to
file a motion to reopen the habeas petition to the Court’s active docket. Petitioner
shall also at that time file an amended habeas petition which contains any newly
exhausted claims.
IT IS SO ORDERED.

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Dated: June 28, 2016
Detroit, MI

/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on June 28, 2016.
s/Tanya R. Bankston
TANYA R.BANKSTON
Case Manager & Deputy Clerk

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