James #155610 v. Jones

Filing 164

OPINION AND ORDER; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHENVISKY JAMES,
Petitioner,

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)
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-v)
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)
KURT JONES,
Respondent.
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_________________________________)

No. 4:01-cv-098
HONORABLE PAUL L. MALONEY

OPINION AND ORDER
I.

Background
This case remains puzzlingly pending; and thus, the present motion is in a particularly

peculiar procedural posture.
In June 2001, Petitioner Shenvisky James filed a petition under 28 U.S.C. § 2254,
alleging a battery of claims. On July 28, 2004, after some time and several orders resolving a
battery of motions, Magistrate Judge Ellen Carmody issued a report and recommendation,
recommending that James’ petition be stayed because he “failed to properly exhaust all of
the [then remaining] claims asserted in his petition.” (ECF No. 117 at *18.)
Understandably, James protested: since he had already filed one motion for relief
from judgment (ECF No. 63 at A.119 (“Appendix G”)), being sent to state court was, in his
view, an exercise in futility and not legally required.
Nonetheless, Judge Richard Enslen, this Court’s predecessor, overruled James’
objections, and “directed” him to “comply with the Palmer procedures as more particularly
described at pages 18 and 19 of the Report and Recommendation.” (ECF No. 117 at *2.)

1

Thereafter, James continued filing motions, necessitating an order denying
reconsideration and enjoining “further filings by Petitioner pending his compliance with the

Palmer procedures as explained in the Report and Recommendation with the following
exceptions: motions as to his ongoing appeal or other proper appeals; and a single motion
for reconsideration concerning this Order and Injunction.” (ECF No. 135 at PageID.83.)
Thereafter, James appealed to the Sixth Circuit. The Circuit observed that “[t]he
magistrate judge recommended that the district court follow the stay procedure provided
within this court’s decision in Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002), to permit
James to elect to either abandon the unexhausted claims or have the matter stayed pending
exhaustion of state-court remedies as to the unexhausted claims,” and “the district court
adopted the magistrate judge’s report and recommendation.” (ECF No. 147 at PageID.142.)
But the Circuit did not (and could not) directly address the merits of that decision to stay
proceedings, and his appeal was denied as to James’ motion for bond and other ancillary
motions. (Id. (“All pending motions are denied.”)). His subsequent motion for
reconsideration was also denied by Judge Enslen. (See ECF No. 145.)
After a denial of his petition for writ of certiorari was denied (ECF No. 150–51),
James seemingly disappeared. And James’ case dropped off the Court’s radar in part because
the action was (erroneously) administratively closed.
Nearly a decade later, James suddenly reappeared: on September 14, 2015, James
filed a motion for relief from judgment in this Court. He included a copy of an order from
state court showing he was correct all along: the order denied his motion for relief from
judgment because, as James had previously argued, it was his second. (ECF No. 157.)

2

However, since he had neither filed an amended complaint nor sought to exhaust his
remedies in state court in a timely fashion, i.e., “the Palmer procedures” (ECF No. 135 at
PageID.83), the Magistrate Judge struck the instant motion because Judge Enslen’s
injunction had never lifted. (ECF No. 151; see ECF No. 135.)
Thus, James filed an appeal of that determination, which is the subject of this order.
(See ECF Nos. 157, 161, 162.)
Despite Petitioner’s delay in returning to this Court, it’s clear that he should never
have been exiled to state court in the first place. And because neither a final order dismissing
this action nor judgment ever entered, Petitioner is entitled to proceed with his habeas claims.
II.

Analysis
A.

Procedural Posture of and Objections to the Motion.

Petitioner seeks relief from the Magistrate Judge’s order under Fed. R. Civ. P. 72(a).
Rule 72(a) allows a party to seek relief from a magistrate judge’s order by filing objections in
the district court where the case is assigned; the district court “must consider timely
objections” to a nondispositive order, but typically may only “modify or set aside any part of
the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see 28 U.S.C.
§ 636(b)(1)(A); see also Massey v. City of Ferndale, 7 F.3d 506, 509 (6th Cir. 1993).
However, that is not the appropriate standard of review for the order.
Per the express terms of Judge Enslen’s injunction, Petitioner was not allowed to file
a successive motion for reconsideration of the underlying order. (See ECF Nos. 135 at
PageID.83, 145 at PageID.138–39.) The Magistrate Judge, thus, simply enforced an
injunction that she was required to enforce at the time.

3

The Magistrate Judge’s sua sponte docketing order enforcing a filing injunction by
striking a motion is best understood as an order taken consistent with 28 U.S.C. § 636(b)(3)
(“A magistrate judge may be assigned such additional duties as are not inconsistent with the
Constitution and laws of the United States.”).1
With respect to § 636(b)(3), “[t]he [Federal Magistrates] Act’s sponsors made it quite
clear that the magistrate acts ‘under the supervision of the district judges’ . . . and that
authority for making final decisions remains at all times with the district judge.” Mathews v.

Weber, 423 U.S. 261, 270 (1976) (quoting S. Rep. No. 371, at 12 (1967)); see id. (quoting
Hearings on the Federal Magistrates Act Before Subcomm. No. 4 of the H. Comm. on the
Judiciary, 90th Cong. 73 (1968) (testimony of Sen. Tydings)) (“[A] district judge would retain
ultimate responsibility for decision making in every instance in which a magistrate might
exercise additional duties jurisdiction.”).
The injunction itself was a legally permissible exercise of authority. “Courts of justice
are universally acknowledged to be vested, by their very creation, with power to impose
silence, respect, and decorum, in their presence, and submission to their lawful mandates.”

Anderson v. Dunn, 6 Wheat. 204, 227 (1821); accord. Chambers v. NASCO, Inc., 501 U.S.
32, 43 (1991).

1

Moreover, because the motion sought reconsideration of Judge Enslen’s prior order adopting a report and
recommendation, the Magistrate Judge could have, at most, substantively addressed the motion for reconsideration of
the order through a report and recommendation. See, e.g., Parks By and Through Parks v. Collins, 761 F.2d 1101,
1105–07 (5th Cir. 1985) (holding that a magistrate judge lacked authority to decide a Rule 60(b) motion to set aside a
default judgment entered by a district judge absent consent of the parties and a referral by the district court); Taylor v.
Nat’l Group of Co.’s, Inc., 765 F. Supp. 411, 413–14 (N.D. Ohio 1990) (“It is simply not the case that a magistrate’s
jurisdiction is, by fiat, somehow merged with that of the district judge to an extent sufficient to vest the magistrate with
the authority to reconsider and set aside or alter prior decisions of the district judge.”). That would mean that the Court
otherwise would have reviewed the underlying motion de novo.

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Nonetheless, the Court must remain mindful that “[b]ecause of their very potency,
inherent powers must be exercised with restraint and discretion.” Chambers, 501 U.S. at 44.
And in any event, “a district court ordinarily has the power to modify or rescind its orders,”
including injunctions, “at any point prior to final judgment in a civil case.” Dietz v. Bouldin,
136 S. Ct. 1885, 1892 (2016) (citing Marconi Wireless Telegraph Co. of America v. United

States, 320 U.S. 1, 47–48 (1943)); see, e.g., F.T.C. v. British Oxygen Co., 437 F. Supp. 79,
83 n.8 (D. Del. 1977) (citing United States v. Swift & Co., 286 U.S. 106, 114 (1932)) (“There
is no doubt that the Court has the inherent power to modify or dissolve a[n] . . . injunction
whose purpose has been fulfilled or as changing conduct or circumstances may require.”).
After a full examination of Petitioner’s motion, along with a full reexamination of this
case and its tortured procedural history, the Court finds that the injunction dated November
10, 2004 should be dissolved because Petitioner should not have had to “compl[y] with the

Palmer procedures” to begin with. (ECF No. 135 at PageID.83.) The Court will more fully
detail the reasons for its conclusion in Part II.b.
In light of the Court’s decision to dissolve the injunction, which is consistent with its
inherent authority, see Dietz, 136 S. Ct. at 1892, the motion should not remain stricken on
the docket, and the Magistrate Judge’s order that simply enforced the injunction is no longer
necessary or appropriate. Accordingly, Judge Enslen’s injunction dated November 10, 2004
is hereby lifted. (ECF No. 135.) Petitioner’s objection is sustained in part (ECF No. 162),
and the Court orders the underlying motion to be reinstated to the docket.
The Court will now consider the merits of Petitioner’s motion to determine whether
an order of dismissal and judgment should now enter or the case should otherwise proceed.

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B.

Petitioner’s Motion.
1.

The motion is properly construed as a motion seeking reconsideration
under the Local Rules and the Court’s inherent authority.

First, the Court must address the procedural posture of this motion and case.
The underlying motion was brought under Fed. R. Civ. P. 60(b). However, “Rule
60(b) [is] limited to review of orders that are independently ‘final decisions’ under 28 U.S.C.
§ 1291.” Kapco Mfg. Co., Inc. v. C & O Enters., Inc., 773 F.2d 151, 154 (7th Cir. 1985); see

id. (“The Advisory Committee’s notes say that the Rule was devised to give the district court
a power of revisitation it had lacked. A court always had the power to modify earlier orders
in a pending case. Therefore ‘final’ in Rule 60(b) must modify ‘order, or proceeding’ as well
as ‘judgment.’”).
Here, the Court’s order and injunction, dated November 10, 2004, was almost
certainly not a “final order” that could have been immediately appealed to the Court of
Appeals because that order merely stayed proceedings pending James’ compliance with the

Palmer procedures. See, e.g., Swanson v. DeSantis, 606 F.3d 829, 832 (6th Cir. 2010)
(concluding a state could not appeal the denial of a motion to stay proceedings so petitioner
could exhaust claims under § 2254 in state court) (“Although some orders described as ‘stays’
may have the practical effect of an injunction and thus qualify for appeal under § 1292(a)(1),
. . . stay orders that merely regulate the course of proceedings do not qualify . . . . ‘An order
by a federal court that relates only to the conduct or progress of litigation before that court
ordinarily is not considered an injunction and therefore is not appealable under §
1292(a)(1).’” (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 279

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(1989))); see also Charles Alan Wright & Arthur R. Miller, 15A Federal Practice &
Procedure § 3914.13 (2d ed. 1992) (“Stays . . . used to regulate the court’s own proceedings
or to accommodate the needs of parallel proceedings . . . are no more appealable than other
interlocutory procedural orders.”).2
The Magistrate Judge’s order striking the underlying motion pursuant to the 2004
injunction reflects a consistency with the puzzlingly pending nature of this case. (See ECF
No. 161 at PageID.254 (“Petitioner’s motion for relief . . . [is] stricken from the record and
rejected pursuant to Judge Richard Alan Enslen’s November 10, 2004 Order.”).)
Thus, the Court will construe this motion as one that falls under W.D. Mich. LCivR
7.4 and the Court’s inherent authority. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A
document filed pro se is to be liberally construed . . . .”); cf. Fed. R. Civ. P. 8(f) (“All pleadings
shall be so construed as to do substantial justice.”).
This distinction matters in part because, as the Court will now discuss, motions under
Rule 60(b) must be filed in a “reasonable time,” 3 whereas motions for reconsideration do
not have time limits because a final order or judgment has not yet entered.

2

Federal Rule of Appellate Procedure 4(a), which has a 210-day outer time limit for an appeal, would not
apply here because neither judgment nor the order dismissing for lack of exhaustion entered. Compare Gillis
v. United States, 729 F.3d 641, 643 (6th Cir. 2013) (noting that in a case brought under § 2255, where an
opinion and order denying the petition had issued but judgment had not, petitioner had 150 days under Fed.
R. App. P. 4(a)(7) plus the standard 60 days in which to file an appeal).
3
James would have been untimely with his motion as to Rule 60(b)(1) (“mistake, inadvertence, surprise, or
excusable neglect”) and (3) (“fraud”) because he failed to file it within one year of the order; he further would
have been untimely under Rule 60(b)(6) because a waiting a decade was unquestionably “unreasonable.” See
Fed. R. Civ. P. 60(c) (“A motion under Rule 60(b) must be made within a reasonable time—and for reasons
(1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.”).

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2.

The Court will consider the motion despite an extended delay.

Given James’ decade-long delay, the Court could have perhaps dismissed this action
for failure to prosecute under Federal Rule of Civil Procedure 41(b).4
However, neither the Court nor the State took any action during that time period
either. The Court did not follow up with an order dismissing this action for lack of
exhaustion, and the State did not seek an order of dismissal and judgment after James failed
to follow the Palmer procedures in a timely manner. Thus, the Court will decline to sua
sponte dismiss the motion and case at this point. This is the appropriate exercise of this
Court’s discretion for a few reasons: 1) there is no per se time-bar to Petitioner’s motion; 2)
this constitutional action seeks relief under the Great Writ; 3) petitioner is proceeding pro
se and he was still pursuing his rights in what he believed to be a necessary (and timeconsuming) manner; and 4) Petitioner’s argument for reconsideration is meritorious.
First, a motion for reconsideration requires separate analysis from a Rule 60(b)
motion. See In re Greektown Holdings, LLC, 728 F.3d 567 (6th Cir. 2013) (noting that
“[w]hen a party files a motion for reconsideration pursuant to . . . [a] local rule, we review
the district court’s ruling on the motion using the standard set forth in the local rule”). In
addition, “a district court ordinarily has the power to modify or rescind its orders at any point
prior to final judgment in a civil case.” Dietz, 136 S. Ct. at 1892.

4

“It is well settled that a district court has the authority to dismiss sua sponte a lawsuit for failure to prosecute.”

Carpenter v. City of Flint, 723 F.3d 700, 704 (6th Cir. 2013). Courts must consider four factors when
considering dismissal for failure to prosecute: “(1) whether the party’s failure is due to willfulness, bad faith,
or fault; (2) whether the adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed
party was warned that failure to cooperate could lead to dismissal; and (4) whether less drastic sanctions were
imposed or considered before dismissal of the action.” Id. (citing Mulbah v. Detroit Bd. of Educ., 262 F.3d
586, 589 (6th Cir. 2001)).

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Neither Local Rule 7.4 nor any limits to the Court’s inherent authority provide a timebar to Petitioner’s motion. And because neither an order dismissing this action for lack of
exhaustion nor judgment entered, the traditional “balance” between “the interest in justice
with the interest in protecting the finality of judgments” does not apply. Summers v. Howard

Univ., 374 F.3d 1188, 1193 (D.C. Cir. 2004) (discussing the appropriate standard for
reconsideration of final orders and judgments under Rule 60(b)); see supra note 2.
Second, the Court must keep in mind that “[t]he purpose of the writ of habeas corpus
ad subjiciendum (sometimes called The Great Writ) is to inquire as to the legality of the
prisoner’s restraint.” Carbo v. United States, 277 F.2d 433, 435 (9th Cir. 1960). Decades
ago, the Supreme Court affirmed the importance of hearing a prisoner’s petition:
We do well to bear in mind the extraordinary prestige of the Great Writ,
habeas corpus ad subjiciendum, in Anglo-American jurisprudence: “the most
celebrated writ in the English law.” 3 Blackstone Commentaries 129. It is “a
writ antecedent to statute, and throwing its root deep into the genius of our
common law. It is perhaps the most important writ known to the constitutional
law of England, affording as it does a swift and imperative remedy in all cases
of illegal restraint or confinement. It is of immemorial antiquity, an instance of
its use occurring in the thirty-third year of Edward I.” Secretary of State for
Home Affairs v. O'Brien, (1923) A.C. 603, 609 (H.L.). Received into our own
law in the colonial period, given explicit recognition in the Federal
Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court
jurisdiction, Act of September 24, 1789, 1 Stat. 81—82, habeas corpus was
early confirmed by Chief Justice John Marshall to be a “great constitutional
privilege.” Ex parte Bollman and Swartwout, 4 Cranch 75, 95 (1807). Only two
Terms ago this Court had occasion to reaffirm the high place of the writ in our
jurisprudence: ‘We repeat what has been so truly said of the federal writ: ‘there
is no higher duty than to maintain it unimpaired,’ Bowen v. Johnston, 306 U.S.
19, 26 (1939) . . . .

Fay v. Noia, 372 U.S. 391, 399–400 (1963), overruled in part by Wainwright v. Sykes, 433
U.S. 72 (1977).
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The Court expresses no opinion on the possible procedural default or merits of his
claims, but if any claim is meritorious, Petitioner would suffer a grave constitutional wrong
by an unwarranted delay and dismissal without a federal court ever considering his claims.
Third, Petitioner is proceeding pro se, which warrants additional caution. See, e.g.,

Streeter v. N.L.R.B., 835 F.2d 879, at *1 (6th Cir. 1987) (table) (citing Salahuddin v. Harris,
782 F.2d 1127, 1132 (2d Cir. 1986)) (“Dismissal for failure to prosecute is a harsh sanction
. . . . Dismissal of pro se lawsuits is justified only when the pro se plaintiff acts deliberately,
not when he does so through misunderstanding.”).
In this case, as the Court will more fully discuss in Part II.B.3, Petitioner knew he had
already filed one motion for relief from judgment. Thus, in his view, he had to go on a “10–
11 year journey” to find “newly discovered evidence”—one of two narrow exceptions that
allows Michigan courts to consider a second motion for relief from judgment. While
Petitioner’s delay was perhaps unreasonable—because he could have at least attempted to file
a second motion in state court in a timely fashion—so too was the Court’s and the State’s
actions in failing to dispose of the case. And since the State’s exhaustion argument and the
Court’s decision were also unreasonable, it’s difficult to fault only a pro se Petitioner here.5
In that vein, and finally, the strongest reason to consider this motion now despite a
long delay is simply this: Petitioner was correct all along; he should never have been required
to follow Palmer procedures.

In addition, since neither a final order nor judgment entered, see supra note 3, Petitioner would have had
the opportunity to appeal now had the Court dismissed for lack of prosecution. Since Petitioner never had
the opportunity to raise the issue of whether the Palmer procedures were required in the first place, it’s
possible that the Sixth Circuit would have reversed the Court’s judgment on that issue and remanded for
further proceedings because Petitioner should not have been required to attempt further exhaustion.
5

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3.

The standard for reconsideration has been met.

Under Local Civil Rule 7.4(a), the party moving for reconsideration bears a heavy
burden to “not only demonstrate a palpable defect by which the Court and the parties have
been misled, but also show that a different disposition of the case must result from a
correction thereof.” W.D. Mich. LCivR 7.4(a) (emphasis added). However, in exceptional
circumstances, the Court also retains inherent authority to reconsider its prior orders on its
own initiative without the need to resort to such an exacting standard. See Dietz, 136 S. Ct.
at 1892.
The original Report and Recommendation, as fully adopted by Judge Enslen—which
is the subject of James’ motion—instructed Petitioner to follow the Palmer procedures:
I recommend that within 30 days of the order of the district court resolving
any objections to this Report and Recommendation, Petitioner must either (a)
file an amended petition containing only the exhausted claim or (b) return to
state court to exhaust his administrative remedies as to his unexhausted claims.
I also recommend that if Petitioner returns to state court within 30 days, he
must file with this court within 45 days of the order of the district court
(referred to immediately above) an affidavit setting forth the date on which he
filed a motion for relief from judgment in the state court and the claims raised
in that motion. If Petitioner fails either to amend his petition or to file the
affidavit concerning the filing of his state-court motion, I recommend that his
petition be dismissed for lack of exhaustion. Upon receipt of Petitioner’s
affidavit, I recommend that this Court stay this matter and administratively
close this case until Petitioner properly exhausts his state-court remedies. Once
Petitioner has exhausted his state-court remedies, I recommend that he be
required to file an amended petition adding his newly exhausted claims with
this court within 30 days of final decision by the Michigan Supreme Court.
(ECF No. 105 at *17, adopted by ECF No. 135.) However, the very basis in the Report and
Recommendation for requiring Petitioner to follow these Palmer procedures constitutes a
“palpable defect by which the Court . . . [was] misled”:
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Petitioner has at least one available procedure by which to raise the
unexhausted issues he has presented in this application. He may file a motion
for relief from judgment under M.C.R. 6.500 et seq. Under Michigan law, one
such motion may be filed after August 1, 1995. M.C.R. 6.502(G)(1). Petitioner
has not yet filed his one allotted motion. Therefore, I conclude that he has at
least one available state remedy.
(Id. at *16, adopted by ECF No. 135.)
At the time the Report and Recommendation entered, Petitioner had already
submitted a copy of an order denying his first motion for relief from judgment. (See ECF
No. 63 at A.116 (“Appendix G”).) That document was apparently overlooked.
In addition, after Petitioner finally went back to state court, his contention that he had
already filed a motion for relief from judgment (and thus relief was not available in state
court) was validated because a state judge denied Petitioner relief because the motion was his
second seeking relief from judgment. (See ECF No. 157-13 at PageID.240 (“Thus, absent a
showing of a retroactive change in the law that occurred after the first motion or a claim of
newly discovered evidence, Defendant’s averments are doubly barred . . . .”).)
The Sixth Circuit has recently affirmed that “Michigan law does not allow the filing of
second motions for post-conviction relief, with two exceptions not applicable [here]”:
Michigan law, instead of imposing a time limit on successive motions, flatly
forbids them, unless they fall within two narrow exceptions: motions based on
(1) “a retroactive change in law that occurred after the first motion for relief
from judgment,” or (2) “a claim of new evidence that was not discovered before
the first such motion.” M.C.R. 6.502(G)(2). Because impermissible successive
motions cannot be filed, they cannot be “accepted” by the state court and thus
are not “properly filed” for tolling purposes under § 2244(d)(2).

Williams v. Birkett, 670 F.3d 729, 733 (6th Cir. 2012). The Court reasoned that “M.C.R.
6.502(G)(1) is ‘a condition to filing, as opposed to a condition on obtaining relief,’ because

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like the timeliness rule in Pace, Michigan’s rule against successive motions prevents a second
petition from even being considered by the court.” Id. (quoting Artuz v. Bennett, 531 U.S.
4, 11 (2000) and citing Pace v. DiGuglielmo, 544 U.S. 408, 413 (2005)).
For the same reason that filing a second motion for relief from judgment does not toll
AEDPA’s one-year time limitation, a petitioner should not be forced to follow the Palmer
procedures when he has already filed one motion for relief from judgment—unless the claims
involve one of the two permissible exceptions under M.C.R. 6.502(G)(2). See, e.g., Birkett,
670 F.3d at 730; Ambrose v. Romanowski, 621 F. App’x 808, 815 (6th Cir. 2015) (“Because
[the petitioner] failed to properly exhaust his current argument in state court, and he no
longer has a state-court remedy available since he has already filed a motion for relief from
judgment under Mich. Ct. R. 6.502(G)(1), his claim is procedurally defaulted.”); see also

Rhines v. Weber, 544 U.S. 269, 277 (2005) (advising district courts that “stay and abeyance
should be available only in limited circumstances”—“when the district court determines that
there was good cause for the petitioner’s failure to exhaust his claims first in state court” and
determines his claims are not “plainly meritless”). If a petitioner cannot even obtain equitable
tolling by filing a second motion for relief from judgment, see Birkett, 670 F.3d at 730, how
can a court tell him to do just that to attempt exhaustion on the merits?6
The Court’s prior conclusion that “petitioner has not yet filed his one allotted motion
[for relief from judgment]” (ECF No. 105 at *16) was unquestionably a “palpable defect by

The Court appreciates that its predecessor and the Magistrate Judge did not have the benefit of Birkett,
Pace, and Rhines in 2004, where the state of the law may have been unsettled in light of arguably contradictory
language in the Michigan Court Rules. Compare M.C.R. 6.502(G)(1) with 6.508(D) (discussing the “failure
to raise such grounds [for relief] on appeal or in the prior motion” (emphasis added)). But the Sixth Circuit
has since clarified M.C.R. 6.502(G). See, e.g., Birkett, 670 F.3d at 730; Romanowski, 621 F. App’x at 815;
6

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which the Court . . . [was] misled.” (Compared id. with ECF No. 63 at A.116 (“Appendix
G”)). Thus, forcing Petitioner to go to state court to “exhaust” claims was legally erroneous.
Because at least some of these claims need to be examined—as opposed to dismissed
for lack of exhaustion—a “different disposition,” at least in one sense, “must result” from the
Court’s prior “palpable defect.” Thus, the Court grants Petitioner’s plea for reconsideration.
With all of that said, the Court does not express any opinion as to whether some of
Petitioner’s claims are procedurally defaulted (as opposed to not exhausted). See Coleman

v. Thompson, 501 U.S. 722, 732 (1991); accord. Cone v. Bell, 243 F.3d 961, 967 (6th Cir.
2001) (“If the claims presented in the federal court were never actually presented in the state
courts, but a state procedural rule now prohibits the state court from considering them, the
claims are considered exhausted, but are procedurally barred.”); see also, e.g., Bechtol v.

Pelesnik, 568 F. App’x 441, 447 (6th Cir. 2014) (finding that claims were procedurally
defaulted under similar circumstances).
The State may make an argument sounding in procedural default, but not exhaustion,
from this point forward for appropriate claims. See Bell, 243 F.3d at 967. But cf. Kissner v.

Palmer, 826 F.3d 898, 904 (6th Cir. 2016) (noting a petitioner may “avoid procedural default
only by showing that there was cause for the default and prejudice resulting from the default,
or that miscarriage of justice will result from enforcing the procedural default in the
petitioner’s case”).
The Magistrate Judge will then need to evaluate, with a fresh examination of the case
file, which claims are procedurally defaulted and which claims can properly be considered
on the merits.

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ORDER
Accordingly, for the reasons stated in the accompanying opinion, the Court hereby
ORDERS the following:
1) the Clerk of Court shall administratively reopen this case;
2) the injunction issued on November 10, 2004 is hereby LIFTED (ECF No. 118);
3) Petitioner’s objection to the Magistrate Judge’s order striking his motion is
SUSTAINED IN PART, and the Clerk of Court shall reinstate Petitioner’s
motion to the docket (ECF No. 157);
4) Petitioner’s motion for reconsideration is GRANTED (ECF No. 157);
5) the prior order dated September 20, 2004 is hereby VACATED (ECF No. 117),
the Magistrate Judge’s Report and Recommendation is REJECTED (ECF No.
105), and the petition is remanded back for a new report and recommendation;
6) the State must file an amended answer to the petition no later than thirty days
from the entry of this order; and
7) the petition is hereby referred anew to the Magistrate Judge for a new Report and
Recommendation, and this matter shall assume precedence, to a reasonable
degree, over other pending matters in light of the long, unjustified delay Petitioner
has faced.
IT IS SO ORDERED.
Date: March 10, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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