United States District Court, E.D. Michigan, Southern Division
DARRYL L. JOHNSON, #561762, Petitioner,
STEVE RIVARD, Respondent.
ORDER ADDRESSING PETITIONER'S LETTERS (Dkt. Nos.
9 and 10), DIRECTING PETITIONER TO INFORM THE COURT HOW HE
WANTS TO PROCEED, AND DIRECTING PETITIONER TO KEEP THE CLERK
OF THE COURT NOTIFIED OF ANY CHANGES IN HIS ADDRESS
HONORABLE GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE
18, 2013, petitioner Darryl L. Johnson commenced this case by
filing a pro se habeas corpus petition challenging
his Michigan convictions for assault with intent to commit
murder, Mich. Comp. Laws § 750.83, felon in possession
of a firearm, Mich. Comp. Laws § 750.224f, carrying a
concealed weapon, Mich. Comp. Laws § 750.227, and
possession of a firearm during the commission of a felony,
Mich. Comp. Laws § 750.227b. See Pet. for Writ
of Habeas Corpus, pp. 1-2 (Dkt. #1, Page ID 1-2). Petitioner
stated in his petition that he was sentenced to two years in
prison for the felony-firearm conviction, followed by
concurrent prison terms of thirty to fifty years for the
assault conviction, twenty to forty years for the
felon-in-possession conviction, and fifteen to thirty years
for the concealed weapon conviction. Id., p. 2 (Dkt.
#1, Page ID 2).
sole ground for habeas relief was that the trial court
deprived him of his constitutional right to present a defense
by refusing to instruct the jury on self-defense.
Id. Petitioner stated that he raised this claim in
an appeal of right and in an application for leave to appeal
in the Michigan Supreme Court. Id.
motion filed on the same day as the habeas petition,
petitioner stated that he wished to pursue additional
state-court remedies for a new claim about his trial
attorney's failure to properly raise a claim of
self-defense. He asked the Court to stay his federal case and
to hold his habeas petition in abeyance while he filed a
motion for relief from judgment in state court. See
Mot. to Hold Habeas Pet. in Abeyance, pp. 1-2 (Dkt. #3, Page
October 8, 2013, the Court granted petitioner's motion to
hold his petition in abeyance and closed this case for
administrative purposes. See Order Granting
Pet'r's Mot. to Hold Pet. in Abeyance and Closing
Case (Dkt. #8). The Court stated in its order that petitioner
would have fifty-six days from the date of the Court's
order to file a motion for relief from judgment in state
court. The Court also directed petitioner to file an amended
petition and a motion to re-open this case within fifty-six
days of exhausting state remedies if he was unsuccessful in
state court. Id., pp. 3-4 (Dkt. #8, Page ID 52-53).
Court heard nothing further from petitioner until August 7,
2017, when he filed a letter in this case. The letter appears
to have been intended for this Court, but it is addressed to
Michigan's Third Judicial Circuit Court Judge Daniel A.
Hathaway. See Letter (Dkt. #9, Page ID 54). The
letter states that petitioner filed a motion for relief from
judgment in state court and that he hoped to file an amended
habeas corpus petition and a motion to re-open this case.
attachment to the letter is a copy of a letter that
petitioner addressed to the Clerk of the Third Judicial
Circuit Court in Wayne County, Michigan on October 6, 2015.
The letter asks the Clerk of that Court whether he or she
received petitioner's motion for relief from judgment,
which Petitioner sent to that court on September 17, 2015.
See id., Attachment 1 (Dkt. #9, Page ID 55).
second attachment to petitioner's letter to this Court is
a copy of petitioner's letter to the Michigan Supreme
Court on January 14, 2016. The letter to the Michigan Supreme
Court asks about the status of petitioner's motion for
relief from judgment. See id., Attachment 2 (Dkt.
#9, Page ID 56).
August 28, 2017, this Court received a second letter from
petitioner. Petitioner states in the letter that he was given
fifty-six days to file a motion for relief from judgment in
state court and that he filed a timely motion in 2013, 2014,
and 2015. See Letter (Dkt. #10, Page ID 58).
Although the state court apparently maintains that it never
received petitioner's motions, Petitioner alleges that he
has proof of service of the motions. Petitioner ends his
letter to the Court by stating that he is trying to file an
amended habeas corpus petition and a motion to re-open this
case. He has asked the Court to respond to his letter.
attachment to the letter filed in this Court on August 28,
2017, is an excerpt of the state trial court's docket for
petitioner's criminal case. It shows that petitioner
filed a motion for relief from judgment in the state trial
court on September 22, 2015. See id. (Dkt. #10, Page ID 60).
Court has found a more recent version of the state trial
court's docket, which indicates that the trial court
denied petitioner's motion for relief from judgment on
October 6, 2016. See People v. Darryl Lenn Johnson,
Wayne Cty. Cir. Ct. Case No. 10-009715-01-FC, at
http://www.3rdcc.org. The Court has no found no
record of an appeal from the state trial court's decision
on petitioner's motion for relief from judgment, and
although petitioner states in his letters that he would like
the Court to respond to his letters, he has not said what he
wants the Court to do about this case.
the Court orders petitioner to inform the Court in writing
within thirty (30) days of the date of this
order how he wants to proceed. If he wants to continue
pursuing state-court remedies, the Court will continue to
hold his petition in abeyance. On the other hand, if
Petitioner wants the Court to re-open this case and
adjudicate any claims for which he has exhausted state
remedies, he should file an amended petition for the writ of
habeas corpus and a motion to re-open this case, using the
case name and number shown in the caption above.
closing, the Court would like to point out that petitioner
was incarcerated at the St. Louis Correctional Facility in
St. Louis, Michigan when he filed his petition, but that he
is currently confined at the Alger Correctional Facility,
N6141 Industrial Park Drive, Munising, Michigan 49862.
Petitioner is required to keep the Clerk of the Court
informed of any changes in his address. Consequently, when he
responds to this order, he should also write to the Clerk of
the Court and notify the Clerk of his change of address. If