1 

 UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN 

 SOUTHERN DIVISION 

DOUGLAS JACKSON, 

Petitioner, 

v. 

MARY BERGHUIS, 

Respondent. 

 /

Case No. 15-cv-11622 

UNITED STATES DISTRICT COURT JUDGE

GERSHWIN A. DRAIN

 

OPINION AND ORDER DENYING MOTION TO ORDER THE STATE 

TRIAL COURT TO ADJUDICATE MOTION FOR RECONSIDERATION 

 Douglas Jackson (“Petitioner”), confined at the Chippewa Correctional 

Facility in Kincheloe, Michigan, filed a petition for writ of habeas corpus pursuant 

to 28 U.S.C. § 2254. See Dkt. No. 1. On May 12, 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. Dkt. No. 5. The Court conditioned this tolling upon Petitioner 

initiating his state post-conviction remedies within sixty days (60) of receiving this 

Court’s order and returning to federal court within sixty days (60) of completing 

the exhaustion of his state court post-conviction remedies. Id. On July 7, 2015, 

the Court denied Petitioner’s request for a Court order requiring the warden at the 
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Michigan Reformatory to grant him permission to seek assistance from the Legal 

Writer Program. See Dkt. No. 8. However, the Court granted Petitioner’s motion 

for an extension of time to file his post-conviction motion for relief from judgment 

with the state court. See id. On July 7, 2016, this Court denied Petitioner’s motion 

for protective relief. See Dkt. No. 22. 

 Presently before the Court is Petitioner’s Motion to Order the State Court to 

Adjudicate the Motion for Reconsideration of the State Court Order Denying 

Relief from Judgment. Dkt. No. 23. For the reasons that follow, the motion is 

DENIED. 

 Petitioner claims the state court returned his original post-conviction motion 

for relief from judgment pursuant to M.C.R. 6.502(D) because the motion failed to 

comply with certain pleading requirements. Dkt. No. 23, p. 2 (Pg. ID 589). 

Petitioner asserts he resubmitted the motion for relief from judgment to comply 

with these pleading requirements, but the state trial judge erroneously construed 

his motion as a second or successive motion for relief from judgment and denied 

him relief under M.C.R. 6.502(G).1

 Id. at p. 2–3 (Pg. ID 589–90). Petitioner 

claims he filed a motion for reconsideration on December 9, 2016 with the state 

 

1

 M.C.R. 6.502(G) prohibits a criminal defendant from filing a second or 

successive motion for relief from judgment except in cases where, after the first 

such motion, there is newly discovered evidence or a retroactive change in the law. 
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court, and that this motion is still pending in the state trial court. Id. at p. 2 (Pg. ID 

589). Petitioner has filed a motion requesting that this Court order the Wayne 

County Circuit Court to adjudicate his motion for reconsideration. Id. 

 It is well settled that “federal courts have no authority to issue writs of 

mandamus to direct state courts or their judicial officers in the performance of their 

duties.” Seyka v. Corrigan, 46 Fed. App’x 260, 261 (6th Cir. 2002) (quoting 

Haggard v. Tennessee, 421 F.2d 1384, 1386 (6th Cir. 1970)). This Court thus 

lacks the authority to compel the state court to adjudicate Petitioner’s postconviction motion. See, e.g., Smith v. Thompson, 437 F. Supp. 189, 191 (E.D. 

Tenn. 1976), aff’d, 559 F.2d 1221 (6th Cir. 1977). 

 In an effort to order the Wayne County Circuit Court to adjudicate his 

motion, Petitioner could request an order of superintending control from the 

Michigan Court of Appeals pursuant to M.C.R. 3.302(D)(1) and M.C.R. 

7.203(C)(1). If that request is unsuccessful, Petitioner could seek an order of 

superintending control from the Michigan Supreme Court pursuant to M.C.R. 

7.303(A)(6). 

 The Court recognizes that inordinate delay in the adjudication of state court 

claims can excuse the exhaustion of state court remedies, particularly where the 

state has caused the delay. Workman v. Tate, 957 F. 2d 1339, 1344 (6th Cir. 1992). 
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Moreover, a habeas petitioner who makes ‘“frequent but unavailing requests to 

have his appeal processed’ in the state court is ‘not required to take further futile 

steps in state court in order to be heard in federal court,’ even if the state court 

subsequently decides his or her appeal.” Turner v. Bagley, 401 F.3d 718, 726 (6th 

Cir. 2005) (quoting Simmons v. Reynolds, 898 F.2d 865, 867–68 (2nd Cir. 1990) 

(citing Lucas v. Michigan, 420 F.2d 259, 262 (6th Cir. 1970)). 

 Petitioner, however, has not shown inordinate delay in the processing of his 

state court post-conviction motion for reconsideration. For example, in Workman

the Sixth Circuit excused the habeas petitioner’s failure to exhaust his state postconviction remedies primarily because the petitioner’s motion for post-conviction 

relief “languished” in the state courts for more than three years without a decision. 

957 F. 2d at 1344. Likewise, in Turner the Sixth Circuit concluded that a federal 

district court should have excused a habeas petitioner from the exhaustion 

requirement no later than when his direct appeal was dismissed for failure to 

prosecute, as the failure was solely attributable to the state and petitioner’s stateappointed attorneys. 401 F.3d at 725–26. Specifically, the state court of appeals 

“failed to insure timely representation,” “continually postponed [petitioner’s] 

appeal by allowing four different attorneys to withdraw from the case without 

filing briefs,” and “allowed petitioner’s appeal to remain on the docket for nearly 
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eleven years without meaningful attention.” Id. at 726. 

 Conversely, Petitioner has failed to show that his motion for reconsideration 

has languished for several years without any meaningful attention in the state 

courts. See id. Petitioner has not alleged that he has made “frequent, but 

unavailing requests” to have his post-conviction motion processed. As of the date 

he filed the motion presently before the Court, Petitioner’s motion for 

reconsideration had only been pending in the state trial court for approximately 

eight months. See Dkt. No. 23. Moreover, Petitioner is not excused from 

exhausting his claims in the state courts because he has not sought relief from the 

Michigan state appellate courts to compel the trial court to entertain his postconviction motion for reconsideration. See Washington v. Warden, Ross Corr. 

Inst., No. 02-70096, 2003 WL 1867914, at *3 (E.D. Mich. Mar. 21, 2003). 

 ORDER 

Accordingly, it is ORDERED that Petitioner’s Motion to Order the State 

Court to Adjudicate the Motion for Reconsideration of the State Court Order 

Denying Relief from Judgment [Dkt. #23] is DENIED. 

 Dated: September 13, 2017 /s/Gershwin A. Drain 

 GERSHWIN A. DRAIN 

 United States District Judge 
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CERTIFICATE OF SERVICE 

Copies of this Order were served upon attorneys of record on 

September 13, 2017, by electronic and/or ordinary mail. 

/s/ Tanya Bankston 

Deputy Clerk