United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION FOR
UNCONDITIONAL WRIT OF HABEAS CORPUS AND RELEASE
HONORABLE ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner's motion for
unconditional writ of habeas corpus and for release. For the
reasons stated below, the motion is DENIED.
Court granted petitioner a writ of habeas corpus, because
petitioner had been denied her right to the effective
assistance of appellate counsel. Houston v. Stewart,
No. 2:13-CV-13886, 2017 WL 1632888 (E.D. Mich. May 2, 2017).
The Court entered an order stating:
Accordingly, it is ORDERED that the petition for a writ of
habeas corpus is CONDITIONALLY GRANTED. It is further ORDERED
that the Wayne County Circuit Court shall order new appellate
counsel be appointed and that appointed counsel shall prepare
and file an application for leave to appeal within fifty-six
days thereafter, or release the petitioner from unlawful
custody, in which case the petitioner's convictions shall
Id., at * 5.
initially filed a notice of appeal. While respondent's
appeal was pending in the Sixth Circuit, the Michigan Court
of Appeals entered an order remanding petitioner's case
to the Wayne County Circuit Court for that court to appoint
appellate counsel for petitioner “within 7 days of the
Clerk's certification of this order.” That order
also provided that “[w]ithin 56 days after the entry of
the order of appointment, counsel shall file in this cause an
application for leave to appeal.” People v.
Houston, No. 338365 (Mich. Ct. App.).
23, 2017, the Wayne County Circuit Court signed an order
appointing new appellate counsel for petitioner. (See
Respondent's Appendix B, attached to respondent's
answer in opposition to the motion for release from custody).
The Michigan Court of Appeals subsequently sent a letter to
appointed appellate counsel informing her that she was
required by this Court's opinion and order to file an
application for leave to appeal within 56 days of the order
appointing her (or August 18, 2017)(See Respondent's
Appendix C, attached to respondent's answer in opposition
to the motion for release from custody).
the parties entered a stipulation on June 28, 2017, in which
respondent agreed to dismiss the appeal of this Court's
order. The parties then entered the following order:
parties agree and stipulate to the following:
(1) The State agrees to dismiss with prejudice its Notice of
Appeal in this matter.
(2) Houston agrees that the June 20, 2017 order by the
Michigan Court of Appeals effectuates “substantial
compliance” with this Court's order of May 2, 2017.
(3) Both parties understand that, if the Wayne Circuit Court
does not appoint counsel within 7 days of the Michigan Court
of Appeals' June 20, 2017 order, or if appointed
appellate counsel does not file an application for leave to
appeal within 56 days of the entry of the order of
appointment of counsel, the conditional writ shall take
effect, and Houston must be released from custody and her
has now filed a motion for an unconditional writ of habeas
corpus and/or for her release on the ground that her
appellate counsel had not filed an application for leave to
appeal to the ...