UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 On November 21, 2014, Petitioner Darrius Martice McCrary filed a pro se habeas corpus 

petition under 28 U.S.C. § 2254. (Dkt. 1.) Shortly thereafter, he filed a motion to stay this case to 

allow him to exhaust state remedies for one of his claims. (Dkt. 4.) On January 27, 2015, the 

Court granted Petitioner’s motion for a stay, held his petition in abeyance pending exhaustion of 

state remedies, and closed this case for administrative purposes. (Dkt. 6.) Now before the Court 

is Petitioner’s motion to amend his habeas petition and to re-open this case. (Dkt. 7.) For the 

reasons that follow, Petitioner’s motion will be granted, this case will be re-opened, and 

Petitioner will be ordered to file an amended petition. 

I. 

Petitioner was convicted in Oakland County Circuit Court of first-degree murder (under 

two theories), Mich. Comp. Laws § 750.316, first-degree home invasion, Mich. Comp. Laws § 

750.110a, and three counts of possession of a firearm during the commission of a felony, Mich. 

Comp. Laws § 750.227b. The trial court sentenced Petitioner to life imprisonment for the 

murder, seven to twenty years in prison for the home invasion, and two years in prison for 

possession of a firearm during the commission of a felony. 

DARRIUS MCCRARY, 

 Plaintiff, 

 

v. 

 

STEVE RIVARD, 

 Defendant. 

Case No. 14-cv-14485 

Honorable Laurie J. Michelson 

Magistrate Judge David R. Grand 

ORDER GRANTING MOTION TO REOPEN CASE AND AMEND PETITION [7] 

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Petitioner appealed his convictions on grounds that: (1) the trial court deprived him of his 

right to present a defense by denying his request for a jury instruction on voluntary 

manslaughter; (2) the prosecutor’s comments on Petitioner’s failure to present a defense violated 

his constitutional rights and shifted the burden of proof; and (3) the judgment of sentence 

improperly reflected two convictions for first-degree murder and felony firearm even though 

there was only one homicide. The Michigan Court of Appeals affirmed Petitioner’s convictions, 

but vacated one conviction for felony firearm. See People v. McCrary, No. 308237, 2013 WL 

2662752 (Mich. Ct. App. June 13, 2013). On November 25, 2013, the Michigan Supreme Court 

denied leave to appeal because it was not persuaded to review the issues. See People v. McCrary, 

495 Mich. 901; 839 N.W.2d 470 (2013) (table). 

On November 21, 2014, Petitioner filed his habeas petition, raising three issues similar to 

the ones that he presented to the state court and a fourth issue regarding the admission of 

inflammatory colored photographs at his trial. (Dkt. 1.) Petitioner contended that he raised his 

fourth claim in a post-conviction motion for relief from judgment which was pending in the state 

trial court. In a motion for a stay filed on December 8, 2014 (Dkt. 4), Petitioner asked the Court 

to hold his habeas petition in abeyance while he exhausted state remedies. 

 On January 27, 2015, the Court granted Petitioner’s motion for a stay and closed this case 

for administrative purposes. The Court ordered Petitioner to file an amended habeas corpus 

petition and a motion to re-open this case within ninety days of exhausting state remedies for his 

fourth claim if he was unsuccessful in state court and wished to re-open this case. (Dkt. 6.) On 

October 20, 2016, Petitioner filed his motion to amend the habeas petition and to re-open this 

case. 

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 Petitioner alleges that the Michigan Supreme Court recently denied his application for 

leave to appeal the trial court’s decision on his motion for relief from judgment and that he has 

complied with the Court’s previous order by filing a timely motion to re-open his case. A review 

of the state trial court’s docket confirms Petitioner’s allegations. It appears that Petitioner filed a 

motion for relief from judgment on November 7, 2014, and that the trial court denied his motion 

on April 6, 2015. See People v. McCrary, No. 2011-237893-FC (Oakland Cty. Cir. Ct. filed Aug. 

16, 2011). It further appears that Petitioner appealed the trial court’s post-judgment decision to 

the Michigan Court of Appeals, see id., and that the Michigan Supreme Court denied leave to 

appeal on September 6, 2016. See People v. McCrary, 500 Mich. 853; 883 N.W.2d 753 (2016). 

Petitioner filed a timely motion to re-open this case on October 20, 2016. 

II. 

Petitioner has largely complied with this Court’s prior order: he has returned to state 

court, represents that he pursued available state remedies to exhaust his new claim, and filed a 

motion to reopen his case within 90 days of completing that process. However, Petitioner failed 

to attach an amended petition to his motion as this Court ordered him to do. 

Accordingly, IT IS ORDERED that Petitioner’s motion to amend his habeas petition and 

to re-open this case (Dkt. 7) is GRANTED. The Clerk of the Court shall reinstate this case on the 

Court’s active docket. 

IT IS FURTHER ORDERED that the Clerk of the Court shall amend the docket to reflect 

Petitioner’s current address at the Muskegon Correctional Facility in Muskegon, Michigan and 

his current warden, S. L. Burt. Petitioner is reminded to keep the Court informed of any future 

changes in his address. See Notice Regarding Parties’ Responsibility to Notify Court of Address 

Changes (Dkt. 5.) 

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IT IS FURTHER ORDERED that Petitioner shall file an amended habeas corpus petition 

using the amended caption (Darrius Martice McCrary v. S. L. Burt) and the case number that 

appears on this order. The amended petition shall include all the exhausted claims that Petitioner 

wishes to have the Court consider. The petition shall be due within thirty (30) days of the date of 

this order. Failure to comply with this order may result in the dismissal of this case. 

SO ORDERED. 

 s/Laurie J. Michelson 

 LAURIE J. MICHELSON 

Dated: March 28, 2017 U.S. DISTRICT JUDGE 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court=s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on March 28, 2017. 

s/Keisha Jackson 

Case Manager 

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