United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING MOTION TO ORDER THE STATE
TRIAL COURT TO ADJUDICATE MOTION FOR RECONSIDERATION
GERSHWIN A. DRAIN United States District Judge
Jackson (“Petitioner”), confined at the Chippewa
Correctional Facility in Kincheloe, Michigan, filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. See Dkt. No. 1. On May 12, 2015, this
Court held the petition for writ of habeas corpus in abeyance
to permit Petitioner to return to the state courts to exhaust
additional claims which had not yet been presented to the
state courts. Dkt. No. 5. The Court conditioned this tolling
upon Petitioner initiating his state post-conviction remedies
within sixty days (60) of receiving this Court's order
and returning to federal court within sixty days (60) of
completing the exhaustion of his state court post-conviction
remedies. Id. On July 7, 2015, the Court denied
Petitioner's request for a Court order requiring the
warden at the Michigan Reformatory to grant him permission to
seek assistance from the Legal Writer Program. See
Dkt. No. 8. However, the Court granted Petitioner's
motion for an extension of time to file his post-conviction
motion for relief from judgment with the state court. See
Id. On July 7, 2016, this Court denied Petitioner's
motion for protective relief. See Dkt. No. 22.
before the Court is Petitioner's Motion to Order the
State Court to Adjudicate the Motion for Reconsideration of
the State Court Order Denying Relief from Judgment. Dkt. No.
23. For the reasons that follow, the motion is DENIED.
claims the state court returned his original post-conviction
motion for relief from judgment pursuant to M.C.R. 6.502(D)
because the motion failed to comply with certain pleading
requirements. Dkt. No. 23, p. 2 (Pg. ID 589). Petitioner
asserts he resubmitted the motion for relief from judgment to
comply with these pleading requirements, but the state trial
judge erroneously construed his motion as a second or
successive motion for relief from judgment and denied him
relief under M.C.R. 6.502(G). Id. at p. 2-3 (Pg. ID
589-90). Petitioner claims he filed a motion for
reconsideration on December 9, 2016 with the state court, and
that this motion is still pending in the state trial court.
Id. at p. 2 (Pg. ID 589). Petitioner has filed a
motion requesting that this Court order the Wayne County
Circuit Court to adjudicate his motion for reconsideration.
well settled that “federal courts have no authority to
issue writs of mandamus to direct state courts or their
judicial officers in the performance of their duties.”
Seyka v. Corrigan, 46 Fed. App'x 260, 261 (6th
Cir. 2002) (quoting Haggard v. Tennessee, 421 F.2d
1384, 1386 (6th Cir. 1970)). This Court thus lacks the
authority to compel the state court to adjudicate
Petitioner's post-conviction motion. See, e.g.,
Smith v. Thompson, 437 F.Supp. 189, 191 (E.D. Tenn.
1976), aff'd, 559 F.2d 1221 (6th Cir. 1977).
effort to order the Wayne County Circuit Court to adjudicate
his motion, Petitioner could request an order of
superintending control from the Michigan Court of Appeals
pursuant to M.C.R. 3.302(D)(1) and M.C.R. 7.203(C)(1). If
that request is unsuccessful, Petitioner could seek an order
of superintending control from the Michigan Supreme Court
pursuant to M.C.R. 7.303(A)(6).
Court recognizes that inordinate delay in the adjudication of
state court claims can excuse the exhaustion of state court
remedies, particularly where the state has caused the delay.
Workman v. Tate, 957 F.2d 1339, 1344 (6th Cir.
1992). Moreover, a habeas petitioner who makes
‘“frequent but unavailing requests to have his
appeal processed' in the state court is ‘not
required to take further futile steps in state court in order
to be heard in federal court, ' even if the state court
subsequently decides his or her appeal.” Turner v.
Bagley, 401 F.3d 718, 726 (6th Cir. 2005) (quoting
Simmons v. Reynolds, 898 F.2d 865, 867-68 (2nd Cir.
1990) (citing Lucas v. Michigan, 420 F.2d 259, 262
(6th Cir. 1970)).
however, has not shown inordinate delay in the processing of
his state court post-conviction motion for reconsideration.
For example, in Workman the Sixth Circuit excused
the habeas petitioner's failure to exhaust his state
post-conviction remedies primarily because the
petitioner's motion for post-conviction relief
“languished” in the state courts for more than
three years without a decision. 957 F.2d at 1344. Likewise,
in Turner the Sixth Circuit concluded that a federal
district court should have excused a habeas petitioner from
the exhaustion requirement no later than when his direct
appeal was dismissed for failure to prosecute, as the failure
was solely attributable to the state and petitioner's
state-appointed attorneys. 401 F.3d at 725-26. Specifically,
the state court of appeals “failed to insure timely
representation, ” “continually postponed
[petitioner's] appeal by allowing four different
attorneys to withdraw from the case without filing briefs,
” and “allowed petitioner's appeal to remain
on the docket for nearly eleven years without meaningful
attention.” Id. at 726.
Petitioner has failed to show that his motion for
reconsideration has languished for several years without any
meaningful attention in the state courts. See Id.
Petitioner has not alleged that he has made “frequent,
but unavailing requests” to have his post-conviction
motion processed. As of the date he filed the motion
presently before the Court, Petitioner's motion for
reconsideration had only been pending in the state trial
court for approximately eight months. See Dkt. No.
23. Moreover, Petitioner is not excused from exhausting his
claims in the state courts because he has not sought relief
from the Michigan state appellate courts to compel the trial
court to entertain his post-conviction motion for
reconsideration. See Washington v. Warden, Ross Corr.
Inst., No. 02-70096, 2003 WL 1867914, at *3 (E.D. Mich.
Mar. 21, 2003).
it is ORDERED that Petitioner's Motion
to Order the State Court to Adjudicate the Motion for
Reconsideration of the State Court Order Denying Relief from
Judgment [Dkt. #23] is DENIED.
 M.C.R. 6.502(G) prohibits a criminal
defendant from filing a second or successive motion for
relief from judgment except in cases where, after the first
such motion, there is newly discovered evidence ...