Lyons-Bey v. Campbell

Filing 13

OPINION and ORDER MODIFYING THE ORDER OF RESPONSIVE PLEADING re 10 Order Requiring Responsive Pleading - (Respondent's Answer due by 5/1/2017) - Signed by Magistrate Judge R. Steven Whalen. (CCie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID MAURICE LYONS-BEY,
Case No. 5:16-CV-13797
HON. JOHN CORBETT O’MEARA
UNITED STATES DISTRICT JUDGE

Petitioner,
v.

HON. R. STEVEN WHALEN
UNITED STATES MAGISTRATE
JUDGE

SHERMAN CAMPBELL,
Respondent,
_______________________________/

OPINION AND ORDER MODIFYING THE
ORDER OF RESPONSIVE PLEADING (Doc. 10)
David Maurice Lyons-Bey, (“petitioner), filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his convictions for assault with intent to do
great bodily harm less than murder, conspiracy to commit assault with intent to do great
bodily harm less than murder, armed robbery, and conspiracy to commit armed robbery.
On October 26, 2016, Magistrate Judge R. Steven Whalen signed an Order of Responsive
Pleading, requiring the respondent to file an answer and the Rule 5 materials by May 1,
2017 (Doc. 10). For the reasons that follow, the Court modifies the Order of Responsive
Pleading.
The habeas corpus rules require respondents to attach the relevant portions of the
transcripts of the state court proceedings, if available, and the court may also order, on its
own motion, or upon the petitioner’s request, that further portions of the transcripts be

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furnished. Griffin v. Rogers, 308 F. 3d 647, 653 (6th Cir. 2002); Rules Governing § 2254
Cases, Rule 5, 28 U.S.C. foll. § 2254. Petitioner has attached the entire trial court record
to his petition for writ of habeas corpus. Petitioner has also attached various pre-trial
transcripts and some appellate court materials to his various motions. Because petitioner
has attached these Rule 5 materials to his habeas petition and other pleadings, it is
unnecessary for this Court to compel respondent to provide these Rule 5 materials when it
files the answer. See Burns v. Lafler, 328 F. Supp. 2d 711, 717-18 (E.D. Mich. 2004).
Respondent is only required to file with this Court any Rule 5 materials that have not been
provided by petitioner with his petition for writ of habeas corpus or other pleadings.
Based upon the foregoing, the Court MODIFIES the Order of Responsive
Pleading. Respondent is required to produce only those Rule 5 materials that have not
already been provided by petitioner when respondent files the answer to the petition for
writ of habeas corpus.
s/R. Steven Whalen
HON. R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
DATED: November 1, 2016
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record on
November 1, 2016, electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager to the
Honorable R. Steven Whalen

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