United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTION TO AMEND 
AND MOTION TO STAY PROCEEDINGS 
J. MICHELSON UNITED STATES DISTRICT JUDGE
Dantzler filed this action under 28 U.S.C. § 2254 to
challenge his conviction of first-degree murder. The case was
previously stayed so that Dantzler could return to state
court and exhaust additional claims. Now Dantzler seeks
another stay to exhaust yet another claim. (ECF No. 23.) He
also asks to amend his petition. (ECF No. 22.) Because the
claim he wishes to exhaust and add to his petition is without
merit, both motions are denied.
of the Federal Rules of Civil Procedure governs amendments to
habeas petitions. See 28 U.S.C. § 2242;
Mayle v. Felix, 545 U.S. 644 (2015). While Rule 15
instructs courts to “freely give leave [to amend] when
justice so requires, ” leave may be denied when the
proposed amendment would be futile. See Jackson v. City
of Cleveland, 925 F.3d 793, 809 (6th Cir. 2019) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)).
futility is a basis to deny a motion to stay. Indeed,
“[a] district court would abuse its discretion if it
were to grant [petitioner] a stay when his unexhausted claims
are plainly meritless.” Rhines v. Weber, 544
U.S. 269, 277 (2005).
seeks to amend his claim that he was denied a fair trial
because the trial court denied him necessary funds to hire an
independent DNA expert. (ECF No. 11, PageID.1520- 1524.) He
seeks to amend and return to state court to exhaust this
claim because the Michigan Supreme Court recently overruled
People v. Tanner, 671 N.W.2d 728 (Mich. 2003),
see People v. Kennedy, 917 N.W.2d 355 (Mich. 2018),
and Dantzler relied on Tanner in his petition.
Post-Kennedy, argues Dantzler, Ake v.
Oklahoma, 470 U.S. 68 (1985), should govern his claim.
So Dantzler both wants to apply Ake to this habeas
claim, as well as go back to the state courts to have this
claim adjudicated now that Tanner has been
Ake does not support his claim. Ake held
that “when a defendant demonstrates to the trial judge
that his sanity at the time of the offense is to be a
significant factor at trial, the State must, at a minimum,
assure the defendant access to a competent psychiatrist who
will conduct an appropriate examination and assist in
evaluation, preparation, and presentation of the
defense.” 470 U.S. at 83. In Kennedy the
Michigan Supreme Court applied the same due-process analysis
to a state-court denial of the appointment of a DNA expert.
917 N.W.2d at 357-67.
from denying Dantzler access to a DNA expert, the trial court
entered an order for the appointment of an independent DNA
expert. (ECF No. 20-5, PageID.1974.) The trial court ordered
the appointment of one expert until it was discovered that a
conflict of interest precluded her appointment. (ECF No.
7-11, PageID.254.) The trial court then ordered the
appointment of another expert (ECF No. 20-5, PageID.1975)
until it was discovered that she sought fees that exceeded
the court's fee schedule (ECF No. 7-11, PageID.255). This
does not amount to the trial court denying Dantzler access to
an expert. Indeed, after stating its holding, the Supreme
Court in Ake further stated “This is not to
say, of course, that the indigent defendant has a
constitutional right to choose a psychiatrist of his personal
liking or to receive funds to hire his own. Our concern is
that the indigent defendant have access to a competent
psychiatrist for the purpose we have discussed, and as in the
case of the provision of counsel we leave to the State the
decision on how to implement this right.” 470 U.S. at
83. Dantzler has not, and likely cannot, argue that the trial
court effectively denied him access to an independent DNA
expert just because the trial court refused to appoint one
who was too expensive. That his counsel, after this expert
was denied, did not then seek another expert is another
matter, and is a separate claim in Dantzler's petition.
Ake does not support Dantzler's claim, it
follows that Kennedy does not either. All that case
did was extend Ake from the psychological-expert
context to the DNA-expert context. And because
Kennedy does not support Dantzler's claim, it
follows that Dantzler's prior reliance on Tanner
does not require amendment.
Ake and Kennedy do not support
Dantzler's claim that his due-process rights were
violated when the trial court denied the appointment of one
particular DNA expert, this proposed claim is futile.
Accordingly, Dantzler's motion to amend his petition (ECF
No. 22) and motion to stay his petition (ECF No. 23) are
The proper respondent in a habeas
corpus case is the warden of the facility where the
petitioner is incarcerated. See Edwards v. Johns,
450 F.Supp.2d 755, 757 (E.D. Mich. 2006). Therefore, the
Court substitutes in the caption Warden Randee Rewerts, the