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Smith v. Hoffner

United States District Court, E.D. Michigan, Southern Division

March 25, 2015

DERRICK LEE SMITH, Petitioner,
v.
BONITA HOFFNER, Respondent.

OPINION AND ORDER (1) DENYING PETITIONER'S MOTIONS TO DISMISS THE CRIMINAL BIND-OVER (ECF NOS. 63 & 67), (2) DENYING PETITIONER'S MOTION FOR A PRELIMINARY INJUNCTION (ECF NO. 71), (3) DENYING PETITIONER'S MOTION FOR A STAY (ECF NO. 72) AND HIS MOTION TO GRANT THE MOTION FOR A STAY (ECF NO. 75), BUT (4) GRANTING PETITIONER'S MOTION TO AMEND THE CASE CAPTION (ECF NO. 77), (5) GRANTING PETITIONER'S MOTION FOR AN ENLARGEMENT OF TIME (ECF NO. 78), AND (6) GRANTING PETITIONER'S REQUEST FOR A COPY OF RESPONDENT'S ANSWER TO THE HABEAS PETITION (ECF NO. 79)

JOHN CORBETT O'MEARA, District Judge.

I. Introduction

This is a habeas corpus case under 28 U.S.C. § 2254. The habeas petition challenges petitioner Derrick Lee Smith's 2008 plea-based convictions for six counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(c)(sexual penetration during the commission of another felony), and two counts of kidnapping, Mich. Comp. Laws § 750.349. Petitioner was sentenced as a fourth habitual offender and is serving a sentence of twenty-two and a half to seventy-five years in prison.

Petitioner raises forty-two claims in his pro se amended habeas corpus petition. Respondent Bonita Hoffner urges the Court to deny the habeas petition for a variety of reasons, including the doctrine of procedural default, the statute of limitations, and the statute governing second or successive claims.

Currently pending before the Court are Petitioner's motions to dismiss the criminal bind-over, his motion for a preliminary injunction, his motions for a stay and to grant the motion for a stay, his motion to amend the case caption, and his motion for an extension of time. Additionally, Petitioner requests a copy of Respondent's answer to the petition. For the reasons given below, the Court denies Petitioner's motions to dismiss the criminal bind-over, his motion for a preliminary injunction, and his motions for a stay and to grant the motion for a stay. The Court grants the motion to amend the case caption, the motion for an extension of time, and the request for a copy of Respondent's answer to the petition.

II. Background

Petitioner commenced this action on March 16, 2010, by filing a pro se habeas corpus petition. See Pet. (ECF No.1) Three months later, Petitioner moved to hold his petition in abeyance pending exhaustion of additional state remedies. See Mot. to Hold Appeal in Abeyance (ECF No. 4). On August 31, 2010, the Court granted Petitioner's motion and closed this case for administrative purposes. See Order Vacating the Order for Responsive Pleading and Granting Pet'r Mot. for a Stay (ECF No. 7).

Petitioner returned to state court, and on April 30, 2012, he filed an amended habeas corpus petition in this Court. On July 19, 2012, the Court re-opened this case and directed Respondent to file an answer to the amended petition. See Order Re-Opening Case and Directing Resp't to File an Answer to the Amended Pet. (ECF No. 21).

On January 15, 2013, Respondent moved to dismiss the habeas petition on the basis that Petitioner had not exhausted state remedies for his claims. See Resp't Mot. for Order Dismissing Pet'r Appl. for Writ of Habeas Corpus (ECF No. 24). Petitioner then requested a stay on the basis that his post-judgment motion was pending in the state trial court. See Pet'r Mot. for a Stay (ECF No. 30).

The Magistrate Judge recommended that the Court deny Respondent's motion to dismiss the habeas petition and grant Petitioner's motion for a stay. See Report and Recommendation (ECF No. 36). The Court adopted the Magistrate Judge's Report and Recommendation, denied Respondent's motion, and held this case in abeyance. See Order Adopting Report and Recommendation (ECF No. 43).

Petitioner subsequently filed several motions to lift the stay. (ECF Nos. 45-49 and 51-52). The Magistrate Judge recommended that the Court deny Petitioner's motions because they sought discovery and because Petitioner had not yet availed himself of fact-finding procedures in the state court. See Report and Recommendation on Pet'r Motions to Lift Stay (ECF No. 55). The Court adopted the Magistrate Judge's Report and Recommendation and denied without prejudice Petitioner's motions to lift the stay and for discovery. See Order Adopting Report and Recommendation (ECF No. 58).

Meanwhile, Petitioner filed another motion to lift the stay. He explained in his motion that the state trial court had denied his motion for relief from judgment and that the other state courts had entered their decisions. He claimed that there was nothing left for him to do in state court and that he wanted the Court to proceed with the issues that he previously presented to the Court. See Pet'r Mot. for Order Lifting Stay and Permission to Proceed on Habeas Corpus Proceedings (ECF No. 56).

The Magistrate Judge recommended that the Court grant Petitioner's motion to lift the stay. See Report and Recommendation on Pet'r Motion to Lift Stay (ECF No. 61). The Court adopted the Magistrate Judge's report and recommendation and re-opened this case. In the same order, the Court directed Petitioner to file an amended petition or to indicate his intent to rely on his ...


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