Cain v. McCullick
Filing
18
OPINION AND ORDER denying as moot 14 Motion for immediate consideration; denying 15 Motion to permit or forestall future transfers; and denying as unripe 17 Motion for extension of time. Signed by District Judge Judith E. Levy. (WBar)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Brandon Lewis Cain,
Petitioner,
Case No. 17-12268
v.
Judith E. Levy
United States District Judge
Mark McCullick,
Mag. Judge Anthony P. Patti
Respondent.
________________________________/
OPINION AND ORDER DENYING AS MOOT MOTION FOR
IMMEDIATE CONSIDERATION [14],
DENYING MOTION TO PERMIT OR FORESTALL FUTURE
TRANSERS [15], AND
DENYING AS UNRIPE THE MOTION FOR AN EXTENSION OF
TIME TO HOLD IN ABEYANCE THE
PETITION FOR WRIT OF HABEAS CORPUS [17]
Brandon Cain (“Petitioner”) filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) which was held in
abeyance to permit Petitioner to return to the state courts to exhaust
additional claims. (ECF No. 7.) The case was administratively closed.
There are three motions pending before the Court. First is
Petitioner’s motion for immediate consideration of his motion to forestall
any future prison transfers. (ECF No. 14.) Second is Petitioner’s motion
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to permit or to forestall any future prison transfers. (ECF No. 15.)
Finally, Petitioner filed a motion to continue the stay. (ECF No. 17.)
A.
Motion for Immediate Consideration
In his motion for immediate consideration (ECF No. 14), Petitioner
seeks to have the Court decide his motion to permit and forestall future
transfers, which is separately filed on the docket (ECF No. 15). This
Opinion and Order addresses his motion to permit and forestall future
transfers. Accordingly, his motion for consideration of that separate
motion is denied as moot.
B.
Motion to Permit or Forestall Future Transfers
Next, Petitioner filed a motion to permit or forestall future
transfers. (ECF No. 15.) In it, Petitioner details several transfers that
have taken place since he filed his original habeas corpus petition. (Id.)
Petitioner was originally incarcerated in the Eastern District of Michigan
when he filed his petition, but has since been transferred to the Alger
Maximum Correctional Facility, which is outside of the Eastern District
of Michigan. He argues that, before he was transferred to Alger, he was
making attempts to have a polygraph test to support an innocence claim
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for but the move created a cost-related hardship. He also contends it is
more difficult for him to visit with his attorneys while in Alger. (Id.)
Petitioner argues that under the Federal Rules of Appellate
Procedure, state officials were forbidden from transferring him to
another facility absent an application demonstrating the need for a
transfer. (Id. at PageID.64.) Petitioner is correct that an order of the
Court normally is required for the transfer where there is a pending
review of a habeas decision. See Fed. R. App. P. 23(a); Cohen v. United
States, 593 F.2d 766, 767, n. 2 (6th Cir. 1979). Appellate Rule 23(a) “was
designed in part to preserve the district judge’s power over the physical
custody of the petitioner by prohibiting the custodian from transferring
custody of the prisoner to another, without the authorization of the ‘court,
justice or judge rendering the decision.’” Jago v. U.S. Dist. Court, N. Dist.
of Ohio, E. Div. at Cleveland, 570 F. 2d 618, 626 (6th Cir. 1978).
Appellate Rule 23(a) is not applicable to Petitioner to obtain a
transfer back to this district, however. Petitioner’s habeas petition is
being held in abeyance, has not yet been determined, and therefore no
appeal is “pending” in this Court for the purposes of Rule 23(a). See
Bridges v. Wolfenbarger, 2007 WL 325356 *3 (E.D. Mich. Jan. 31, 2007)
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(“[Rule 23(a)] applies only when a habeas petition is before a court of
appeals on review of a district court’s decision and is therefore
inapplicable to habeas petitions that are pending in a federal district
court.”); see also Hairston v. Nash, 165 F. App’x. 233, 235 (3rd Cir. 2006)
(Rule 23(a) “is inapplicable to habeas petitions for which no decision has
been issued and which are, therefore, not ‘pending’ appellate review.”)
Accordingly, Petitioner’s motion is denied.1
C.
Motion for Extension of Stay
Petitioner sent this Court a letter, which the Court construes as a
motion to extend the time to hold his habeas petition in abeyance. (ECF
No. 16.) Petitioner has also filed a motion to continue the stay. (ECF No.
17.) In both, Petitioner indicates that he filed his post-conviction motion
for relief from judgment, which was denied by Wayne County Circuit
Court Judge Vonda Evans. After the motion was denied, Petitioner
discovered new evidence that his trial counsel had a conflict of interest
because he was allegedly receiving money from a prosecution witness.
Petitioner also alleges he found additional claims that he wanted to raise
The denial is without prejudice to Petitioner filing any separate civil rights
complaint under 42 U.S.C. § 1983,.
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in an amended motion for relief from judgment. Petitioner filed a motion
to amend his post-conviction motion for relief from judgment to add these
claims, as well as a motion to reissue the order denying post-conviction
relief because petitioner did not receive the initial order denying the
motion in a timely manner. Petitioner contends that Judge Evans’
successor, Judge Noah Hood, forwarded his amended post-conviction
motion to the Wayne County Prosecutor’s Office Conviction Integrity
Unit for an investigation into whether trial counsel was laboring under a
conflict of interest.
A federal district court has the power to extend the stay of a habeas
petition. McFarland v. Scott, 512 U.S. 849, 857 (1994) (citing 28 U.S.C. §
2251). An extension of the terms of the original stay order is unnecessary
in this case, however. The original opinion and order holding the petition
in abeyance stated that Petitioner was to return to the federal court
within ninety days of completing the exhaustion of state post-conviction
remedies, and that time has not yet passed.2
Petitioner’s amended post-conviction motion is pending in the state trial
court. A habeas petition should be denied on exhaustion grounds where a state postconviction motion remains pending in the state courts. Juliano v. Cardwell, 432 F. 2d
1051, 1051 (6th Cir. 1970); Haggard v. State of Tenn., 421 F. 2d 1384, 1386 (6th Cir.
1970). If the trial court denies the motion, Petitioner has the ability to appeal that
2
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Petitioner’s motion for an extension of time is therefore denied
because it is not yet ripe for consideration. Petitioner has, to date,
complied with the terms of the original stay order, which provides that
he shall have ninety (90) days from the conclusion of his state postconviction proceedings in the Michigan appellate courts to file an
amended petition along with a motion to lift the stay, using the same case
number.
D.
Conclusion
Accordingly, Petitioner’s motion for immediate consideration (ECF
No. 14) is DENIED AS MOOT. The motion to permit or forestall
transfers (ECF No. 15) is DENIED. The motion for an extension of time
to hold the petition in abeyance (ECF No. 16, 17) is DENIED.
IT IS SO ORDERED.
Dated: July 7, 2020
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
denial to the Michigan appellate courts. Where a habeas petitioner has an
opportunity under state law to file an appeal following the state trial court’s denial
of his or her state post-conviction motion, that petitioner has not yet exhausted his or
her state court remedies. See Cox v. Cardwell, 464 F. 2d 639, 644-45 (6th Cir. 1972).
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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 July 7, 2020.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
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