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 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT JAY HEXIMER,

 

Petitioner, Civil No. 2:08-CV-14170

HONORABLE ARTHUR J. TARNOW

v.

RAYMOND BOOKER,

Respondent.

__________________________________/

OPINION AND ORDER GRANTING IN PART THE MOTION FOR PARTIAL

SUMMARY JUDGMENT AND GRANTING THE MOTION TO AMEND THE CAPTION

On October 6, 2008, this Court dismissed petitioner’s habeas application brought

pursuant to 28 U.S.C. § 2254, on the ground that petitioner had failed to exhaust his

state court remedies with respect to the twelve claims that he had raised in his habeas

petition. See Heximer v. Berghuis, No. 2008 WL 4539431 (E.D. Mich. October 6, 2008).

Petitioner appealed the Court’s dismissal to the United States Court of Appeals

for the Sixth Circuit. On August 30, 2010, the parties jointly moved for the Sixth Circuit

to remand the matter to this Court, on the ground that petitioner had now exhausted his

state court remedies. The Sixth Circuit vacated this Court’s order of summary dismissal

and remanded the matter back to this Court for further proceedings. Heximer v.

Berghuis, U.S.C.A. 09-1069 (6th Cir. August 30, 2010).

On November 30, 2010, this Court reinstated the petition to the Court’s active

docket and ordered a responsive pleading from respondent. On January 28, 2011,

respondent filed an answer to the petition for writ of habeas corpus. As part of her

answer, respondent contends that the claims contained within the petition are

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unexhausted, notwithstanding the fact that the Sixth Circuit had previously granted the

parties’ joint motion to remand the case to this Court for a merits determination because

petitioner’s claims had now been exhausted. See Respondent’s Answer, pp. 22-24. 

Petitioner has now filed a motion for partial summary judgment and a motion to

amend caption.

Taking the motion to amend caption first, petitioner indicates that he has now

been moved to the Ryan Correctional Facility. The only proper respondent in a habeas

case is the habeas petitioner’s custodian, which in the case of an incarcerated habeas

petitioner would be the warden of the facility where the petitioner is incarcerated. See

Edwards Johns, 450 F. Supp. 2d 755, 757 (E.D. Mich. 2006); See also Rule 2(a), 28

foll. U.S.C. § 2254. Therefore, the Court substitutes Warden Raymond Booker of the

Ryan Correctional Facility in the caption.

Petitioner has also moved for a partial summary judgment. In his motion,

petitioner argues that respondent has waived all procedural defenses because she

failed to raise them in an answer before the United States Court of Appeals for the Sixth

Circuit. 

Assuming that respondent’s failure to raise procedural defenses before the Sixth

Circuit would constitute a waiver of her right to assert these defenses before this Court,

the only procedural defense that respondent raises in her answer is her argument that

the petition should be dismissed because petitioner failed to exhaust his claims.

Respondent’s exhaustion argument is precluded not so much by her failure to

assert it in the Sixth Circuit as much as by the fact that the Sixth Circuit ordered that this

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case be remanded back to this Court for a merits determination on the ground that

petitioner had exhausted his claims. Under the law of the case doctrine, a court is

ordinarily precluded from re-examining an issue previously decided by the same court,

or by a higher court in the same case. Consolidation Coal Co. v. McMahon, 77 F. 3d

898, 905 (6th Cir. 1996). The law of the case doctrine has been applied to habeas

cases in other contexts. See Crick v. Smith, 729 F. 2d 1038, 1039 (6th Cir. 1984). 

Respondent’s contention that petitioner has failed to exhaust his claims is barred by the

law-of-the case doctrine. See e.g. Diguglielmo v. Smith, 366 F. 3d 130, 135 (2nd Cir.

2004). Accordingly, the Court will grant petitioner’s partial summary judgment motion in

part and will not dismiss the petition on exhaustion grounds.

To the extent that petitioner is asking the Court to enter a default judgment, this

Court is without power to grant petitioner a default judgment in this case, because a

default judgment is unavailable in a habeas corpus proceeding under 28 U.S.C. § 2254.

See Allen v. Perini, 424 F. 2d 134, 138 (6th Cir. 1970); Whitfield v. Martin, 157 F. Supp.

2d 758, 761 (E.D. Mich. 2001). 

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ORDER

Based upon the foregoing, IT IS ORDERED that the motion for partial summary

judgment [Dkt. # 42] is GRANTED IN PART and the motion to amend caption [Dkt. #

44] is GRANTED.

s/Arthur J. Tarnow 

Arthur J. Tarnow

Senior United States District Judge

Dated: August 9, 2011

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

of record on August 9, 2011, by electronic and/or ordinary mail.

s/Catherine A. Pickles 

Judicial Secretary

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