United States District Court, E.D. Michigan, Southern Division
AND ORDER GRANTING MOTION TO REOPEN HABEAS PETITION, GRANTING
MOTION TO AMEND THE CAPTION, GRANTING THE MOTION TO AMEND
PETITION FOR WRIT OF HABEAS CORPUS, ORDERING THAT THE AMENDED
PETITION BE SERVED UPON THE RESPONDENT AND THE MICHIGAN
ATTORNEY GENERAL, AND ORDER DIRECTING RESPONDENT TO FILE A
SUPPLEMENTAL ANSWER AND ANY ADDITIONAL RULE 5 MATERIALS IN
SEAN F. COX UNITED STATES DISTRICT JUDGE.
September 1, 2014, this Court dismissed the petition for writ
of habeas corpus filed by petitioner so that he could exhaust
additional claims that he had failed to exhaust in the state
court prior to filing his habeas petition. Petitioner has
filed a motion to reopen his petition for writ of habeas
corpus following the exhaustion of his new claims. Petitioner
has also filed a motion to amend his habeas petition.
Petitioner has also filed a motion to add a new warden as
respondent, which this Court construes as a motion to amend
Clerk of the Court is ORDERED to reopen this case to the
Court's active docket. The Court amends the caption to
reflect the name of petitioner's current warden, Sherman
Campbell. The Clerk of the Court shall serve a copy of the
amended petition for writ of habeas corpus upon Respondent
and the Michigan Attorney General's Office by first class
mail. Respondent shall file a supplemental answer to the
amended petition and any additional Rule 5 materials within
one hundred twenty (120) days of the Court's order.
courts have the power to order that a habeas petition be
reinstated upon timely request by a habeas petitioner,
following the exhaustion of state court remedies. See e.g.
Rodriguez v. Jones, 625 F.Supp.2d 552, 559 (E.D.
Mich. 2009). Petitioner's claims have been exhausted with
the state courts; his petition is now ripe for consideration.
Accordingly, the Court will order that the original habeas
petition be reopened.
Court also orders that the caption in this case be amended to
reflect that the proper respondent in this case is now
Sherman Campbell, the warden of the prison where petitioner
is currently incarcerated. See Edwards Johns, 450
F.Supp.2d 755, 757 (E.D. Mich. 2006); See also Rule
2(a), 28 foll. U.S.C. § 2254.
Court grants the motion to amend his habeas petition. The
Court permits petitioner to amend his petition, because there
is no indication that allowing the amendment would cause any
delay to this Court nor is there any evidence of bad faith on
petitioner's part in bringing the motion to amend or
prejudice to Respondent if the motion is granted. See
Gillette v. Tansy, 17 F.3d 308, 313 (10th Cir.
Clerk of the Court shall serve a copy of the amended petition
for writ of habeas corpus [Dkt. # 17] and a copy of this
Order on Respondent and on the Attorney General for the State
of Michigan by first class mail as provided in Rule 4 of the
Rules Governing § 2254 Cases, Rule 4. See Coffee v.
Harry, No. 04-71209; 2005 WL 1861943, * 2 (E.D. Mich.
Aug. 2, 2005). Respondent shall file a supplemental answer to
the amended habeas petition within one hundred and twenty
days of the Court's order. See Erwin v. Elo, 130
F.Supp.2d 887, 891 (E.D. Mich. 2001); 28 U.S.C. § 2243.
Respondent is also ordered to provide this Court with any
additional Rule 5 materials that have not already been
provided to the Court at the time that it files its
supplemental answer. See Griffin v. Rogers, 308 F.3d
647, 653 (6th Cir. 2002); Rules Governing § 2254 Cases,
Rule 5, 28 U.S.C. foll. § 2254. Petitioner shall have
forty five days from the receipt of the answer to file a
reply brief, if he so chooses. See Rule 5(e) of the Rules
Governing § 2254 Cases, 28 U.S.C. foll. § 2254.
(1) The motion to reopen the petition for writ of habeas
corpus [Dkt. # 16] is GRANTED. The Clerk of the Court shall
reopen the habeas petition to the Court's active docket.
(2) The motion to add new warden as respondent [Dkt. # 15] is
GRANTED. The caption of the case is amended.
(3) The motion to amend the petition for writ of habeas
corpus [Dkt. # 16] is GRANTED.
(4) The Clerk of the Court shall serve a copy of the amended
petition for writ of habeas corpus [Dkt. # 17] and a copy of
this Order on Respondent and the ...