United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER REQUIRING PETITIONER TO CLARIFY THE
ISSUES BEING RAISED AND THE CONVICTIONS BEING CHALLENGED IN
THE HABEAS PETITION AND GRANTING RESPONDENT AN EXTENSION OF
TIME TO FILE A SUPPLEMENTAL ANSWER TO THE PETITION FOR WRIT
OF HABEAS CORPUS AND ANY ADDITIONAL RULE 5 MATERIALS
HORABLE GEORGE CARAM STEEH JUDGE
Kwasny, (“petitioner”), presently confined at the
Huron Valley Women's Complex in Ypsilanti, Michigan,
seeks the issuance of a writ of habeas corpus pursuant to 28
U.S.C. § 2254. Petitioner was convicted by a jury in
June, 2011 in the Berrien County Circuit Court of uttering
and publishing, three counts of possessing or using a
financial transaction device without consent, and drawing a
check on a bank without a bank account. Petitioner was
separately convicted by a jury in the Berrien County Circuit
Court in February, 2012 of subornation of perjury.
Petitioner's two convictions were consolidated on appeal
and affirmed, although the case was remanded for a new order
of restitution. People v. Kwasny, Nos. 306784,
309924, 2013 WL 5857632 (Mich. Ct. App. Oct. 31, 2013),
judgment vacated in part, appeal denied in part, 497
Mich. 908, 856 N.W.2d 70 (2014).
filed a petition for writ of habeas corpus on or about
October 1, 2015. Within her habeas application, petitioner
filed two form petitions, one challenging her uttering and
publishing, financial transaction device, and closed account
check convictions, and one challenging her perjury
conviction. Petitioner also attached to her lengthy petition
her appellate court briefs challenging both convictions and
numerous other pleadings with respect to both convictions.
Petitioner, however, did not move to consolidate both of her
convictions into one habeas petition.
April 8, 2016, respondent filed an answer to the habeas
application, but addressed only the issues raised by
petitioner in her petition for writ of habeas corpus
challenging her 2011 convictions for uttering and publishing,
financial transaction device, and closed account check.
Respondent did not address any of the claims raised by
petitioner in her separate form habeas petition challenging
her perjury conviction, perhaps because of confusion over
whether petitioner was also challenging this conviction in
this habeas application as well.
habeas petitioner has the burden to present his or her issues
clearly. See United States ex. Rel. Rickard v.
Sternes, 149 F.Supp.2d 437, 448 (N.D. Ill. 2001). Where
there is confusion about the claims being raised by a pro
se habeas petitioner, a district court should order the
habeas petitioner to articulate the specific claims that he
or she wishes to raise in his or her petition. See
Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985). In
light of the large number of pleadings that petitioner has
filed in this case, it may not be clear to the respondent the
issues for which petitioner is seeking habeas relief on and
the convictions that she is challenging. An appropriate
response to a habeas petition is an answer which responds to
each allegation contained in a habeas petition. Chavez v.
Morgan, 932 F.Supp. 1152, 1153 (E.D. Wis. 1996). An
order of clarification of the issues raised and the
convictions being challenged is therefore necessary so this
Court and respondent can accurately determine which
convictions are being challenged by petitioner and which
issues are being raised.
in the interests of time and judicial economy, this Court can
consolidate petitioner's two habeas applications into one
action pursuant to Fed.R.Civ. P. 42, if that is what she
chooses to do. See Bernal v. Helman, 958 F.Supp.
349, 351-52 (N.D. Ill. 1997).
petitioner is ordered to submit a statement with this Court
and the respondent within thirty days of the Court's
order which clarifies the specific issues and convictions for
which petitioner seeks habeas relief.
petitioner does not want to challenge her perjury conviction
at this time, the Court will adjudicate her petition
regarding the uttering and publishing, financial transaction
device, and closed account check convictions. If petitioner
indicates that she wishes to challenge her perjury conviction
and is raising the claims that she presented in her form
petition that appears to challenge the perjury conviction,
the Court will grant respondent a sixty day extension of time
from the date that he receives petitioner's statement
clarifying the issues and the convictions being challenged to
file a supplemental answer in this case. A federal court has
discretion in extending the time for a state to file a
response to a habeas corpus petition. See Whitfield v.
Martin, 157 F.Supp.2d 758, 761 (E.D. Mich. 2001). The
Court will also order respondent to provide this Court with
the any additional Rule 5 materials from petitioner's
2012 perjury conviction at the time that it files its
supplemental answer. 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 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 does not respond to the Court's order within
30 days, the Court will proceed to adjudicate only the
petition challenging petitioner's 2011 convictions.
(1) Petitioner shall have thirty (30) days from the date of
this order to provide a statement to the Court and to the
respondent which clarifies the issues that she wishes to
raise and the convictions that she wishes to challenge in her
(2). Respondent shall have sixty (60) days from the date that
he receives petitioner's statement of clarification to
file a supplemental answer to any issues or convictions that
respondent has not yet ...