United States District Court, E.D. Michigan, Southern Division
AND ORDER (1) GRANTING MOTION TO LIFT STAY ; (2) GRANTING
MOTION TO AMEND PETITION FOR WRIT OF HABEAS CORPUS; (3)
SETTING SCHEDULE FOR BRIEFING ON AMENDED PETITION; AND (3)
DENYING WITHOUT PREJUDICE THE MOTION FOR AN EVIDENTIARY
GERSHWIN A. DRAIN, UNITED STATES DISTRICT JUDGE.
27, 2015, Petitioner Leonard Mullins, III, confined at
Ojibway Correctional Facility in Marenisco, Michigan, filed a
petition for writ of habeas corpus with this Court pursuant
to 28 U.S.C. § 2254. See Dkt. No. 1. On August
5, 2015, this Court held the petition in abeyance so that
Mullins could return to the state courts to exhaust his new
claims. See Dkt. No. 11.
before the Court are Petitioner's Motion to Lift the Stay
, Motion to File an Amended Habeas Petition , and
Motion for an Evidentiary Hearing on the Effectiveness of his
Trial and Appellate Counsel .
Court GRANTS both the Motion to Lift the Stay and Motion to
Amend the Habeas Petition . The Court DENIES without
prejudice Petitioner's Motion for an Evidentiary Hearing
the Court will amend the case caption, and the Respondent
must file a supplemental answer and any additional Rule 5
materials within one hundred and eighty (180) days of this
Order. Petitioner will have forty-five (45) days from receipt
of the answer to file a reply brief.
requested that the Court (1) lift the stay on this case, (2)
permit him to amend the habeas petition, and (3) hold an
evidentiary hearing on the amended petition. The Court will
address Petitioner's requests in turn.
following the exhaustion of state court remedies and upon
timely request by a habeas petitioner, federal courts may
order that a habeas petition be reinstated. See, e.g.,
Rodriguez v. Jones, 625 F.Supp.2d 552, 559-60 (E.D.
Mich. 2009). Petitioner contends he has exhausted his claims
in the state courts. As a result, the Court will reinstate
Petitioner's case. Accordingly, the Court orders that the
case caption be amended to reflect that the Respondent here
is now Kathleen Olson, the warden of the prison where
Petitioner is incarcerated. See Edwards v. Johns,
450 F.Supp.2d 755, 757 (E.D. Mich. 2006); see also
Rules Governing § 2254 Cases, R. 2(a), 28 U.S.C. foll.
the Court grants Petitioner's Motion to Amend the Habeas
Petition. In determining whether to grant an amendment to a
habeas petition, courts primarily consider notice and
substantial prejudice to the opposing party. Coe v.
Bell, 161 F.3d 320, 341-342 (6th Cir. 1998). Here, there
is no evidence of bad faith in Petitioner's filing of the
motion to amend or evidence of prejudice to Respondent if the
Court were to grant the motion. Thus, the Court will grant
Petitioner's Motion to Amend.
Clerk of the Court shall serve both a copy of the amended
habeas petition, Dkt. No. 17, and this Order on Respondent
and the Attorney General for the State of Michigan by first
class mail as provided in Rule 4 of the Rules Governing
§ 2254 Cases. See Coffee v. Harry, No.
04-71209, 2005 WL 1861943, at *2 (E.D. Mich. Aug. 2, 2005).
Respondent shall file a supplemental answer to the amended
petition within one hundred and eighty days (180) of this
Order. See Erwin v. Elo, 130 F.Supp.2d
887, 891 (E.D. Mich. 2001); see also 28 U.S.C.
§ 2243. When Respondent files its supplemental answer,
Respondent must also provide the Court with any Rule 5
materials not already submitted to the Court. See Griffin
v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002). Petitioner
has forty-five days (45) from the receipt of the answer to
file a reply brief. See Rules Governing § 2254
Cases, R. 5(e), 28 U.S.C. foll. § 2254.
the Court will deny without prejudice Petitioner's motion
for an evidentiary hearing on his amended petition. To
determine whether an evidentiary hearing would help resolve a
habeas petition, a court should review the Respondent's
answer, the transcript and record of the state court
proceedings, and any expanded record. See Rules
Governing § 2254 Cases, R. 8(a), 28 U.S.C. foll. §
2254; Hence v. Smith, 49 F.Supp.2d 547, 549 (E.D.
Mich. 1999). The Court has not yet received from the
Respondent a supplemental answer or portions of the state
court record. Without these materials, the Court cannot
decide whether an ...