United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PETITIONER'S MOTION TO RE-OPEN
THIS CASE , GRANTING IN PART THE MOTION FOR EQUITABLE
TOLLING , AND DIRECTING RESPONDENT TO FILE SUPPLEMENTAL
RECORDS AND A RESPONSE TO THE AMENDED PETITION
J. TARNOW UNITED STATES DISTRICT JUDGE
De'Vaughn Mason, a state prisoner at the G. Robert Cotton
Correctional Facility in Jackson, Michigan, was convicted in
2010 of assault with intent to commit murder, possession of a
firearm during the commission of a felony ("felony
firearm"), and felon in possession of a firearm. On
August 6, 2010, the trial court sentenced Petitioner to five
years in prison for the felony- firearm conviction, followed
by concurrent terms of twenty-five to fifty years in prison
for the assault conviction and five to ten years in prison
for the felon-in-possession conviction. The Michigan Court of
Appeals affirmed Petitioner's convictions on direct
appeal, see People v. Mason, No. 300008, 2011 WL
6186955 (Mich. Ct. App. Dec. 13, 2011), and on May 21, 2012,
the Michigan Supreme Court denied leave to appeal. See
People v. Mason, 491 Mich. 920; 812 N.W.2d 745 (2012).
commenced this case in 2013. He alleged as grounds for relief
that (1) the trial court deprived him of his right to present
a defense by limiting his questioning of witnesses, and (2)
appellate counsel provided ineffective assistance. Petitioner
asserted that he raised his first claim in both the Michigan
Court of Appeals and the Michigan Supreme Court, but that he
raised his second claim only in the Michigan Supreme Court.
He attached to his petition a motion to hold his petition in
abeyance while he pursued additional remedies in state court.
April 24, 2014, the Court granted Petitioner's motion to
hold his habeas petition in abeyance and ordered him to file
a motion for relief from judgment in the state trial court
within ninety days of the Court's order. The Court also
ordered Petitioner to file an amended habeas petition and a
motion to re-open this case within ninety days of exhausting
state remedies if he was unsuccessful in state court. The
Court closed the case for administrative purposes.
See Doc. No. 19.
subsequently filed a motion for relief from judgment in the
state trial court. The trial court denied his motion, and the
Michigan Court of Appeals denied leave to appeal under
Michigan Court Rule 6.508(D)(3) because Petitioner alleged
grounds for relief that he could have raised previously.
See People v. Mason, No. 326262 (Mich. Ct. App. May
21, 2015). On February 2, 2016, the Michigan Supreme Court
also denied leave to appeal for failure to establish
entitlement to relief under Rule 6.508(D). See People v.
Mason, 499 Mich. 856; 873 N.W.2d 315 (2016).
October 20, 2017, Petitioner returned to this Court with his
motion to reopen this case, his motion for equitable tolling,
and his amended petition and supporting brief for the writ of
habeas corpus. In his motions, Petitioner admits that he
failed to comply with the Court's prior order to file his
amended petition within ninety days of exhausting state
collateral remedies. He contends, however, that he was unable
to meet the ninety-day deadline because he incurred serious
medical problems, he was transferred to another facility for
specialized treatment of his medical problems, and he was
placed on "high power" medications that interfered
with his ability to function properly. He has asked the Court
to conclude that the delay in filing his amended petition was
not his fault and that his amended petition was timely filed.
He contends that he was able to submit his amended petition
only recently with the help of a legal writer and that the
State will not be prejudiced if the Court grants his motion.
habeas petitioner's failure to comply with the conditions
of an order staying his case and holding a petition in
abeyance is a basis for dismissing the case. Calhoun v.
Bergh, 769 F.3d 409, 411 (6th Cir. 2014). Here, however,
Petitioner appears to have timely filed his post-conviction
motion in state court, and he has provided a reasonable
explanation for his failure to return to this Court within
ninety days of exhausting state remedies. The Court,
therefore, grants Petitioner's motion to re-open this
case (Doc. No. 20).
Court also grants Petitioner's motion for equitable
tolling (Doc. No. 21), but only to the extent that the Court
is allowing Petitioner to proceed with his case despite his
failure to comply with a deadline set forth in the
Court's previous order. The Court declines to say whether
any of Petitioner's claims are barred by the one-year
statute of limitations, 28 U.S.C. § 2244(d), because the
timeliness of the amended petition - in a limitations sense -
is distinct from the issue of whether Petitioner complied
with the conditions set forth in the Court's order
staying this case. Calhoun, 769 F.3d at 411. Absent
a response from the State, the complete state-court record,
and any details or documentation from Petitioner concerning
his past medical condition, his transfer to another facility,
and his high-powered medication, the Court is unable to say
whether the limitations period should be equitably tolled.
Court orders Respondent to file a response to the amended
habeas petition and any supplemental state-court materials
needed to address the issues. The State's supplemental
response and the supplemental state-court materials,
including the relevant portions of the Michigan Supreme
Court's file on direct appeal, shall be due within two
months of the date of this order.
 The amended petition alleges that: (1)
the trial court denied Petitioner his right to present a
defense by limiting his questioning of witnesses; (2) the
trial court failed to give jurors the proper oath, and
defense counsel was ineffective for failing to object; (3)
the trial judge assumed the prosecutor's role, questioned
prosecution witnesses, and pierced the veil of impartiality;
(4) defense counsel was ineffective for failing to (a)
advocate for Petitioner without being deflected by
conflicting considerations, (b) investigate, (c) file a
pretrial motion to suppress evidence, (d) present a defense,
and (e) object to the trial judge's questioning of
witnesses; (5) appellate counsel prevented Petitioner from
raising issues in a pro se brief and failed to raise
issues about trial counsel's ...