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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DOUGLAS JACKSON, 

 Petitioner, Case No. 2:15-CV-11622 

 

 UNITED STATES DISTRICT JUDGE 

v. GERSHWIN A. DRAIN 

LES PARISH, 

 Respondent. 

____________________________________/ 

OPINION AND ORDER DENYING AS PREMATURE 

THE MOTION TO LIFT THE STAY (ECF No. 149) AND 

ACKNOWLEDGING RECEIPT OF OCTOBER 10, 2023 LETTER (ECF No. 

154) 

 Before the Court is petitioner’s motion to lift the stay. Also, before the Court 

is the Petitioner’s October 10, 2023 Letter requesting speedy adjudication of his July 

14, 2023 petition for mandamus. For the reasons that follow, the motion is DENIED 

as premature and the request for speedy adjudication is DENIED. 

Petitioner filed a petition for writ of habeas corpus with this Court pursuant to 

28 U.S.C. § 2254. This Court held the petition in abeyance and administratively 

closed the case permitting petitioner to complete state post-conviction proceedings 

in the state courts where he had attempted to exhaust additional claims. Jackson v. 

Parish, No. 15-CV-11622, 2019 WL 4573799 (E.D. Mich. Sept. 20, 2019). The stay 

was based on the fact that the Michigan Supreme Court remanded petitioner’s case 

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back to the Wayne County Circuit Court to address petitioner’s motion for 

reconsideration. The Michigan Supreme Court’s lengthy decision ordered the trial 

court to determine whether petitioner’s amended motion for relief from judgment 

filed on May 24, 2016 constituted a successive motion for relief from judgment 

within the meaning of M.C.R. 6.502(G). If the trial judge determined that it was not 

a successive motion, the judge was directed to decide the motion under the standard 

for granting or denying post-conviction relief found in M.C.R. 6.508. If the judge 

determined that this motion is successive, the judge could deny relief pursuant to 

M.C.R. 6.502(G). The judge was ordered to “issue an opinion setting forth its 

analysis.” In re Jackson, 932 N.W.2d 622 (Mich. 2019). 

Petitioner has now filed a motion to lift the stay. Petitioner claims that on 

June 2, 2023, the Wayne County Circuit Court judge denied his remaining claims 

pursuant to M.C.R. 6.502(G), apparently finding the amended motion to be a 

successive motion for relief from judgment. Petitioner argues that his case is now 

ripe for review because he believes that M.C.R. 6.502(G) precludes a defendant from 

appealing a trial court order denying a successive motion for relief from judgment. 

Under M.C.R. 6.502(G)(1), a criminal defendant in Michigan can typically 

file only one motion for relief from judgment with regard to a criminal conviction. 

See Banks v. Jackson, 149 F. App’x 414, 418 (6th Cir. 2005). Although M.C.R. 

6.502(G)(1) indicates that a defendant cannot appeal the denial or rejection of a 

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successive motion for relief from judgment, contrary to petitioner’s belief, this rule 

does not act as a complete ban on an appeal from the denial of a successive motion 

for relief from judgment. See e.g. Ingram v. Prelesnik, 730 F. App’x 304, 311, n. 3 

(6th Cir. 2018); see also Adams v. Lesatz, No. 2:17-CV-11056, 2019 WL 6310925, 

at * 2 (E.D. Mich. Nov. 25, 2019)(holding habeas petition in abeyance to permit the 

petitioner to file an appeal from the denial of a successive motion for relief from 

judgment). 

There are several possible grounds that petitioner could bring to appeal the 

judge’s order. 

First, M.C.R. 6.502(F) provides that, “[t]he court may permit the defendant to 

amend or supplement the motion [for relief from judgment] at any time.” The 

Michigan Supreme Court initially remanded the case back to the trial court to 

determine whether or not the amended motion for relief from judgment should be 

treated as a successive motion for relief from judgment that would be barred under 

M.C.R. 6.502(G), or whether it was, in fact, a supplement to the original motion. 

Although the judge treated the amended motion as an improperly filed successive 

motion, the Michigan Court of Appeals or Michigan Supreme may determine the 

amended motion for relief from judgment is a supplement to the petitioner’s original 

motion for relief from judgment and conclude that the judge erred in denying the 

motion pursuant to M.C.R. 6.502(G). See e.g. Rushing v. Booker, No. 04-74322, 

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2005 WL 1529623, * 3 and n. 5 (E.D. Mich. Jun. 28, 2005)(suggesting that petitioner 

could file another motion for relief from judgment, when petitioner’s first motion 

was dismissed without prejudice and he had not been given an opportunity, pursuant 

to M.C.R. 6.502(F), to amend or supplement the first motion). 

Secondly, M.C.R. 6.502(G)(2) states that a defendant may file a second or 

subsequent motion based on a retroactive change in the law that occurred after the 

first motion for relief from judgment or a claim of new evidence that was not 

discovered before the first such motion. Banks, 149 F. App’x at 418. 

Finally, although not specifically mentioned in M.C.R. 6.502(G)(2), 

jurisdictional defects can be pursued in a successive motion for relief from judgment 

because such defects can be raised at any time. People v. Washington, 508 Mich. 

107, 131–32, 972 N.W.2d 767, 779 (2021). 

This Court “should exercise caution in finding that” 6.502(G) would bar 

petitioner from presenting these claims to the Michigan appellate courts. Banks, 419 

F. App’x at 418. “Because it is at least debatable whether the Michigan [appellate] 

courts would entertain [these claims] on a second or successive motion for state 

postconviction relief,” Id., petitioner’s motion to lift the stay is premature, 

particularly if petitioner is operating on the belief that he is completely barred from 

appealing the denial of his amended motion for relief from judgment by the trial 

court. When the Michigan Supreme Court denies an appeal under M.C.R. 6.502(G), 

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the typical language used is not that “the appeal itself was barred, but because [the 

defendant’s] “motion for relief from judgment is prohibited by MCR 6.502(G).” 

Ingram v. Prelesnik, 730 F. App’x at 311, n 3 (emphasis original). Petitioner “also 

would have a difficult time explaining his interpretation of Rule § 6.502(G) as a 

complete ban on appeals, given the over-900 Michigan Supreme Court orders that 

deny leave to appeal citing that rule.” Id. 

Because it is possible for petitioner to appeal the denial of his amended motion 

for relief from judgment to the Michigan appellate courts, the Court denies the 

motion to lift the stay as premature. 1

 Petitioner can move to reopen the petition 

within sixty days of the conclusion of any post-conviction appeals. Alternatively, if 

petitioner chooses not to appeal the judge’s decision denying the amended motion 

for relief from judgment, he has sixty days from the date of this order to move to 

reopen the case. 

Finally, petitioner seeks speedy resolution of his July 14, 2023 mandamus 

petition; however, the Court never received a mandamus petition on that date. 

1 A criminal defendant in Michigan has six months from the denial of a motion 

for relief from judgment by the trial court to file an application for leave to appeal 

with the Michigan Court of Appeals. M.C.R. 6.509 (A); M.C.R. 7.205(G)(3). The 

trial judge denied the motion on June 2, 2023. Petitioner would have six months 

from this date to appeal the trial judge’s decision should he choose to do so. 

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Accordingly, petitioner’s request for speedy resolution of his mandamus petition 

[ECF No. 154] will be denied. 

 IT IS ORDERED that the motion to lift the stay (ECF No. 149) is DENIED 

WITHOUT PREJUDICE. 

Dated: November 2, 2023 /s/Gershwin A. Drain 

 GERSHWIN A. DRAIN 

 United States District Judge 

CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

November 2, 2023, by electronic and/or ordinary mail. 

/s/ Teresa McGovern 

Case Manager

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