UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL J. WALTON,

Petitioner, Case Number 4:15-CV-10609

Honorable Linda V. Parker

v.

THOMAS MACKIE,

Respondent,

_____________________________________/

OPINION AND ORDER GRANTING PETITIONER’S MOTION FOR A

SECOND EXTENSION OF TIME TO FILE HIS POST-CONVICTION

MOTION FOR RELIEF FROM JUDGMENT WITH THE STATE COURT

Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C.

 § 2254, in which he sought relief from his convictions for assault with intent to

commit murder, unlawful imprisonment, and felony-firearm. On July 13, 2015,

this Court held the petition for writ of habeas corpus in abeyance to permit

Petitioner to return to the state courts to exhaust additional claims which had not

yet been presented to the state courts. The Court conditioned this tolling upon

Petitioner initiating his state post-conviction remedies within sixty days of

receiving this Court’s order and returning to federal court within sixty days of

completing the exhaustion of his state court post-conviction remedies. 

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On August 18, 2015, this Court granted Petitioner an extension of time to

file his post-conviction motion. Petitioner has now sent a letter to the Court, which

the Court construes as a second motion for an extension of time to file his postconviction motion for relief from judgment with the state courts. 

A federal district court has the power to extend the stay of a habeas petition,

particularly where the respondent does not oppose the extension of the stay. See

e.g. Roberts v. Norris, 415 F.3d 816, 819 (8th Cir. 2005). It appears that Petitioner

has done all that he could reasonably do to file his state post-conviction motion for

relief from judgment on time, but was “prevented in some extraordinary way” from

doing so. The Court therefore concludes that it is appropriate to extend

Petitioner’s deadline for filing the motion. See Schillereff v. Quarterman, 304 F.

App’x. 310, 314 (5th Cir. 2008). 

Accordingly, Petitioner’s request for an extension of time is GRANTED. 

Petitioner may file a motion for relief from judgment with the state court within

sixty (60) days of receipt of this Court’s order. If Petitioner fails to file a motion

for relief from judgment with the state courts by that date, the Court will lift the

stay, reinstate the original petition for writ of habeas corpus to the Court’s active

docket and proceed to adjudicate only the claims that were raised in the original

petition. 

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If Petitioner files a motion for relief from judgment in state court, he shall

notify this Court as to when such motion papers were filed. The case shall then be

held in abeyance pending the Petitioner's exhaustion of the claims. 

After Petitioner fully exhausts his new claims, he shall return to this Court

within sixty (60) days after the conclusion of his state court post-conviction

proceedings and file an amended petition that includes the new claims, along with

a motion to lift the stay. The amended petition and motion shall bear the casecaption (including the case number) set forth above. Failure to comply with these

requirements will result in the Court lifting the stay and adjudicating the merits of

the claims raised in Petitioner’s original Habeas Petition. 

SO ORDERED. 

S/ Linda V. Parker 

LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: October 20, 2015

I hereby certify that a copy of the foregoing document was mailed to counsel of

record and/or pro se parties on this date, October 20, 2015, by electronic and/or

U.S. First Class mail.

S/ Richard Loury 

Case Manager

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