UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEARY GILMORE, 

 

Petitioner, Case No. 2:09-cv-10110

 Hon. Nancy G. Edmunds

v.

SHIRLEE HARRY

Respondent.

_____________________________________/

ORDER DIRECTING RESPONDENT TO FILE ANSWER TO MOTION TO MAKE

ADDITIONAL FINDINGS UNDER RULE 52(B), [Dkt. 58], AND TO FILE ADDITIONAL

RULE 5 MATERIALS

The Court denied Petitioner’s application for a writ of habeas corpus on March 30,

2016. Dkt. 56. Presently before the Court is Petitioner’s motion to make additional findings

filed under Federal Rule of Civil Procedure 52(b). (Dkt. 58). Petitioner asserts that the Court

erred in failing to require Respondent to file portions of the state court record necessary to

fairly adjudicate his claims. Specifically, Petitioner asserts that his Memorandum of Law

filed in the trial court on April 8, 2004, appended with portions of the trial transcripts,

“contained everything this Honorable Court needed to hear and determine the facts, and

dispose of the matter as law and justice require.” Dkt. 58, at 4. Along with his motion,

Petitioner took the liberty of filing the missing document with the Court. Id., Appx. B-C. 

Petitioner claims that the Court relied upon the state trial court’s factual findings in

its order denying Petitioner’s motion for relief from judgment. Dkt. 47-11. Petitioner correctly

notes that the trial court order largely adopted the prosecutor’s response to the motion for

relief from judgment, a fact noted in this Court’s opinion. Dkt. 56, at 6. Petitioner asserts

that the attachments to the April 8, 2004, memorandum of law undermine the factual

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assertions contained in the state trial court order. 

Additionally, among his claims of ineffective assistance of appellate counsel,

Petitioner asserts that his counsel failed to argue on direct appeal that the jury was not

administered its oath prior to trial. The prosecutor conceded on state collateral review that

the trial transcript does not reflect that the oath was administered. See Dkt. 46, at 46; Dkt.

47-2, at 32. The prosecutor argued that at the time of Petitioner’s 1974 trial it was possible

that the jury oath was noted by the court clerk in the court file or on a work sheet which

would have been available to Petitioner’s appellate counsel at the time, but the images of

the trial court file in Petitioner’s case were not preserved on microfilm. See Dkt. 47-2, at 35-

36, n. 75; People v. Livingston, 57 Mich. App. 726, 734 (1975). The Court accepted this

representation and rejected Petitioner’s claim on the basis that Petitioner failed to

overcome the presumption that appellate counsel rendered effective assistance of counsel.

See Dkt. 56, at 12-14. Petitioner asserts that contrary to the prosecutor’s representations,

a 2014 state trial court order suggests that the state trial court file still exists, and it may

indicate one way or the other whether the jury was sworn. See Dkt. 58, at 18. 

Rule 5(c) of the Rules Governing Section 2254 Cases states that “the respondent

must attach to the answer parts of the transcript that the respondent considers relevant.”

In addition, “the judge may order that the respondent furnish other parts of existing 

transcripts or that parts of untranscribed recordings be transcribed and furnished.” Rule

5(c), Rules Governing Section 2254 Cases. Respondent filed none of the trial transcripts

with the Rule 5 material, presumably because such transcripts are unavailable.

Accordingly, the Court ORDERS Respondent within forty-five (45) days of entry of

this order to: 

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(1) File an answer to Petitioner’s motion to make additional findings. Dkt. 58. 

(2) Either furnish a copy of Petitioner’s Memorandum of Law Petitioner filed

in the trial court on April 8, 2004, with attached trial transcript pages, or affirm

that the copy of said document filed with the Court by Petitioner is accurate.

(3) File such additional portions of the trial transcript in existence, if any, that

the Respondent considers relevant to address the arguments raised in

Petitioner’s motion to make additional findings. 

(4) Determine whether the trial court case file or a copy thereof is still in

existence. If the file exists, then Respondent must file such portions of the file

relevant to a determination of whether the jury was administered an oath

prior to trial. If the file does not exist, then Respondent must submit in writing

the steps taken in attempting to obtain the case file and the reasons

supporting its conclusion that the file no longer exists.

 

SO ORDERED.

s/ Nancy G. Edmunds

Honorable Nancy G. Edmunds 

Dated:May 5, 2016 United States District Judge

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