Beaver v. Mackie

Filing 8

ORDER granting 7 Motion to lift stay and amend petition, reopening case, and directing petitioner to file an amended petition. Signed by District Judge Judith E. Levy. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Michael J. Beaver,
Petitioner,

Case No. 15-cv-13678
Judith E. Levy
United States District Judge

v.
Thomas Mackie,

Mag. Judge Mona K. Majzoub
Respondent.
________________________________/
ORDER GRANTING PETITIONER’S MOTION TO LIFT
THE STAY AND TO AMEND HIS PETITION [7],
REOPENING THIS CASE, AND DIRECTING PETITIONER TO
FILE AN AMENDED PETITION
Petitioner

Michael

J.

Beaver,

a

state

prisoner

at

Oaks

Correctional Facility in Manistee, Michigan, was convicted in 2012 of
first-degree home invasion, Mich. Comp. Laws § 750.110a(2), larceny of
a firearm, Mich. Comp. Laws § 750.357b, and felon in possession of a
firearm, Mich. Comp. Laws § 750.224f.

The trial court sentenced

Petitioner to concurrent prison terms of 150 months to thirty years for
the home invasion and twenty-eight to ninety months for the other
convictions.

The Michigan Court of Appeals affirmed Petitioner’s

convictions, see People v. Beaver, No. 309787, 2013 WL 6689101 (Mich.
Ct. App. Dec. 19, 2013), and on July 29, 2014, the Michigan Supreme
Court denied leave to appeal because it was not persuaded to review the
issues. See People v. Beaver, 496 Mich. 864 (2014).
Petitioner commenced this action on October 14, 2015, by filing a
pro se habeas corpus petition under 28 U.S.C. § 2254 and a motion to
hold his habeas petition in abeyance. (Dkts. 1, 2.) Petitioner asserted
as grounds for relief the following four claims which he raised on direct
appeal: (1) the trial court abused its discretion by denying his motion
for new trial based on newly discovered evidence that the prosecution’s
star witnesses committed perjury; (2) his trial attorney was ineffective
for opening the door to otherwise inadmissible evidence that Petitioner
was previously convicted of a similar charge; (3) the prosecutor engaged
in misconduct by threatening and arresting a witness; and (4) the
prosecutor committed misconduct by (a) failing to correct perjured
testimony, (b) vouching for his witness, (c) misstating the evidence in
closing arguments, and (d) eliciting testimony about Petitioner’s past
gang affiliation.

Petitioner also argued that defense counsel was

ineffective for failing to object to the prosecutor’s misconduct.
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In his motion for a stay, Petitioner indicated that he intended to
raise additional claims about the prosecutor and his former attorneys in
a post-conviction motion presented to the state trial court.

He asked

the Court to stay his federal case and to hold his habeas petition in
abeyance while he exhausted state remedies for these additional claims.
On February 4, 2016, the Court granted Petitioner’s motion for a
stay and closed this case for administrative purposes. (Dkt. 6.) As a
condition of the stay, the Court ordered Petitioner to file a motion for
relief from judgment in the state trial court within ninety days of the
Court’s order.

The Court also stated that, if Petitioner were

unsuccessful in state court and wished to return to federal court, he
should file an amended habeas corpus petition and a motion to re-open
this case within ninety days of exhausting state remedies for his new
claims.
Currently pending before the Court is Petitioner’s motion to lift
the stay and to amend his petition. (Dkt. 7.) He states that he filed a
motion for relief from judgment in state court after this Court stayed
his habeas case and that the state trial court denied his post-conviction
motion. He further alleges that he appealed the trial court’s decision
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and that the Michigan Supreme Court denied relief on November 29,
2017.

He proposes to file an amended habeas petition in which he

raises the four claims that he presented to the state courts on direct
appeal and three additional claims that he presented to the state courts
on collateral review of his convictions.
Petitioner has complied with the Court’s order granting a stay.
Accordingly, the Court GRANTS Petitioner’s motion to lift the stay and
to amend his habeas petition (Dkt. 7). The Court orders the Clerk of
the Court to reopen this case. The Court orders Petitioner to file an
amended petition and two identical copies, using the same caption and
case number that appear above. The amended petition will supersede
Petitioner’s initial petition. Accordingly, Petitioner should include all
the claims that he wishes the Court to consider, as well as the
supporting facts or a brief. Petitioner must file his amended petition
within thirty (30) days of the date of this order. The Court will then
order the Clerk of Court to serve copies of the amended petition on the

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warden and on the Michigan Attorney General.
IT IS SO ORDERED.
Dated: April 10, 2018
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
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 April 10, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager

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