UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

HOWARD HUGHES,

Plaintiff,

v.

SHAWN BREWER,

Defendant.

 /

Case No. 2:02-cv-73113

HONORABLE STEPHEN J. MURPHY, III

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 

PETITIONER'S MOTION FOR AN EXTENSION OF TIME 

TO FILE HIS POST-CONVICTION MOTION FOR RELIEF 

FROM JUDGMENT WITH THE STATE COURTS AND REQUESTING

AN ORDER FOR RESPONDENT TO SUPPLY RULE 5 MATERIALS [13]

On April 20, 2017, the United States Court of Appeals for the Sixth Circuit granted

petitioner Howard Hughes's motion to permit him to file a second or successive petition

pursuant to 28 U.S.C. § 2244(b)(3)(A), in which he challenges his 1982 conviction for firstdegree murder. On November 13, 2017, the Court held the petition for writ of habeas

corpus in abeyance to permit Hughes 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 90 days of

receiving the Court's order and returning to federal court within 90 days of completing the

exhaustion of his state court post-conviction remedies.

Petitioner has now filed a motion making two requests: (1) that the Court provide an

extension of time to file his post-conviction motion for relief from judgment with the state

courts; and (2) that the Court order the Respondent to provide him with the Rule 5

materials, on the ground that the state trial and appellate courts have now destroyed the
trial transcripts and other documents that petitioner claims he needs to file his postconviction motion.

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

particularly when the respondent does not oppose the extension of the stay. See, e.g.

Roberts v. Norris, 415 F.3d 816, 819 (8th Cir. 2005). Hughes demonstrated his entitlement

to an extension of the stay because he showed that an extension of time is needed to file

his post-conviction motion for relief from judgment with the state court. The Court will

therefore grant Petitioner an extension of time, as stated below, to file a motion for relief

from judgment in the state court.

The Court will deny Hughes's request that the Court compel the State of Michigan to

provide him with the transcripts and documents from his criminal case. First, as a general

rule, a criminal defendant has no federal constitutional right to a transcript to prepare a

post-conviction proceeding. Rickard v. Burton, 2 F. App'x 469, 470 (6th Cir. 2001) (citing

to Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992)); United States v. MacCollom, 426

U.S. 317, 325–26 (1976). "Possession of a transcript is not a 'condition precedent' to the

filing of a state post-conviction motion." Grayson v. Grayson, 185 F. Supp. 2d 747, 752

(E.D. Mich. 2002) (citing Gassler v. v. Bruton, 255 F.3d 492, 495 (8th Cir. 2001)). Indeed,

petitioner could file a post-conviction motion for relief from judgment with the state trial

court, after which the trial court could order the production of the transcripts. Id. Moreover,

a prisoner is not entitled to the preparation of a free transcript merely for the purpose of

searching it for grounds for a possible application for post-conviction or habeas corpus

relief. See Lucas v. United States, 423 F.2d 683, 684–85 (6th Cir. 1970); Watts v. State of

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Tenn., 603 F. Supp. 494, 494–95 (M.D. Tenn. 1984). In particular, Hughes is not entitled

to a free transcript of his trial, because he has failed to point to any specific need for the

transcripts to prepare his post-conviction motion. See Route v. Blackburn, 498 F. Supp.

875, 877 (M.D. La. 1980). In light of the conclusory nature of Hughes's motion for the

production of the documents and transcripts from his state criminal case, the motion for

production of these transcripts and documents is denied. See Cassidy v. United States, 304

F. Supp. 864, 867 (E.D. Mo. 1969). 

ORDER

WHEREFORE it is HEREBY ORDERED that Hughes's motion for an extension of

time to file in the states courts and requesting the Court to order the Respondent to supply

Petitioner with Rule 5 materials is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that Petitioner may file a motion for relief from judgment

with the state court within ninety days (90) days of receipt of this Order.

IT IS FURTHER ORDERED that Hughes's request that the State of Michigan be

compelled to provide him with the legal transcripts and documents from his criminal case

is DENIED.

SO ORDERED.

s/Stephen J. Murphy, III 

STEPHEN J. MURPHY, III

Dated: December 8, 2017 United States District Judge

I hereby certify that a copy of the foregoing document was served upon the parties

and/or counsel of record on December 8, 2017, by electronic and/or ordinary mail.

s/David P. Parker 

Case Manager

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