Vasquez v. Curtin

Filing 11

OPINION AND ORDER granting 9 Motion to lift stay and amend the habeas petition, ordering the amended petition by served upon respondent and the Michigan Attorney General, and directing respondent to file answer and Rule 5 materials. Signed by District Judge Thomas L. Ludington. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JONATHAN VASQUEZ,
Petitioner,

Case No. 13-10125
Honorable Mark A. Goldsmith

v.
THOMAS MACKIE,
Respondent.
/

OPINION AND ORDER
(1) GRANTING PETITIONER’S MOTION TO LIFT STAY AND TO AMEND THE
HABEAS PETITION (Dkt. 1); (2) ORDERING THAT THE AMENDED PETITION (Dkt.
8) BE SERVED UPON RESPONDENT AND THE MICHIGAN ATTORNEY GENERAL;
AND (3) DIRECTING RESPONDENT TO FILE AN ANSWER AND THE RULE 5
MATERIALS
I. INTRODUCTION
Petitioner Jonathan Vasquez filed a pro se petition for writ of habeas corpus under 28
U.S.C. § 2254 (Dkt. 1), in which he challenged his convictions for second-degree murder and
armed robbery. On February 6, 2013, this Court entered an order granting Petitioner’s motion
for stay pending completion of state post-conviction proceedings. 2/6/2013 Order (Dkt. 7). The
Court also administratively closed the case. Petitioner has now filed a motion to lift the stay
(Dkt. 9), claiming he has now exhausted his state court remedies. For the reasons explained
below, the Court grants Petitioner’s motion. Respondent is ordered to file a responsive pleading
to the amended petition (Dkt. 8) and the Rule 5 materials within 60 days of the Court’s order.
II. ANALYSIS
Federal courts may reinstate a federal habeas petition upon a timely request by a
petitioner. See Frazier v. Bell, No. 2:11-CV-10893, 2013 WL 5902480, at *5 (E.D. Mich. Oct.
1

31, 2013) (citing Rodriguez v. Jones, 625 F. Supp. 2d 552, 559 (E.D. Mich. 2009); see also Parisi
v. Cooper, 961 F. Supp. 1247, 1249 (N.D. Ill. 1997). Petitioner represents that he has now
exhausted his claims in state court. Accordingly, the Court will order that the matter be reopened
and that the amended petition is accepted for filing.
The Court will further order that the Clerk of the Court serve a copy of the amended
petition for writ of habeas corpus (Dkt. 8) and a copy of this order on Respondent and on the
Attorney General for the State of Michigan by first class mail, as provided in Rule 4 of the Rules
Governing § 2254 Cases, Rule 4.
The Court will also order Respondent to file a response to the habeas petition within 60
days of the Court’s order. This Court has the discretion under the rules governing responses in
habeas corpus cases to set a deadline for a response to Petitioner’s habeas petition. The Court
will also order Respondent to file any additional Rule 5 materials relating to Petitioner’s postconviction proceedings at the time that it files its answer. Griffin v. Rogers, 308 F.3d 647, 653
(6th Cir. 2002); Rules Governing § 2254 Cases, Rule 5, 28 U.S.C. foll. § 2254.
Finally, the Court will give Petitioner 45 days from the filing of Respondent’s answer to
file a reply brief. See Rules Governing § 2254 Cases, Rule 5(e), 28 U.S.C. foll. § 2254 (a habeas
petitioner “may submit a reply to the respondent’s answer or other pleading within a time fixed
by the judge”).
III. CONCLUSION
For the reasons stated above, the Court grants Petitioner’s motion to life the stay and to
amend the habeas petition (Dkt. 9). Accordingly, the Court orders that the petition for a writ of
habeas corpus is reinstated to the Court’s active docket. The Court further orders that the Clerk

2

of the Court serve a copy of the amended petition for writ of habeas corpus and a copy of this
order on Respondent and the Attorney General by first class mail.
Respondent shall file an answer and produce the state-court record within 60 days of the
date of this order, or show cause why they are unable to comply with the order. Petitioner shall
have 45 days from the filing of the answer to file a reply brief.
SO ORDERED.

Date: June 26, 2015
Detroit, Michigan

s/Mark A. Goldsmith_____________
MARK A. GOLDSMITH
United States District 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 26, 2015.
s/Carrie Haddon
Case Manager

3