UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JERMAINE MURPHY,

Petitioner,

v.

KENNETH MCKEE,

Respondent.

/

Civil Action No. 2:09-CV-10714

Honorable Nancy G. Edmunds

OPINION AND ORDER (1) GRANTING MOTION TO

LIFT STAY, REOPEN HABEAS PROCEEDINGS, AND AMEND PETITION FOR WRIT

OF HABEAS CORPUS, (2) ORDERING SERVICE OF THE AMENDED PETITION,

AND (3) DIRECTING RESPONDENT TO FILE RESPONSIVE MATERIALS

This 28 U.S.C. § 2254 matter is before the Court because Michigan prisoner

Jermaine Murphy filed an “Amended/Supplemental [Petition] for Writ of Habeas Corpus.”

ECF No. 17. Murphy is incarcerated by the Michigan Department of Corrections, currently

housed at the Pugsley Correctional Facility in Kingsley, Michigan, where he is serving

concurrent prison terms of (1) six to twenty-five years, each, for three counts of assault with

intent to do great bodily harm, (2) six to twenty-five years for one count of felon in

possession, (3) six to twenty-five years for one count of carrying a concealed weapon, and

(4) a mandatory two-year prison term for one count of felony firearm. His convictions

occurred on March 13, 2007, following a bench trial in the Circuit Court in Wayne County,

Michigan. Both state appellate courts affirmed his convictions and sentences. People v.

Murphy, No. 277104, 2008 WL 1733384 (Mich. Ct. App. Apr. 15, 2008); People v. Murphy,

482 Mich. 974, 754 N.W.2d 888 (2008).

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Murphy filed his original Habeas Petition on February 25, 2009, asserting that he is

incarcerated in violation of his constitutional rights because there was insufficient evidence

presented to support his convictions and the prosecutor improperly impeached him with

respect to his prior convictions. Subsequently, on July 13, 2009, he filed a “Petition to

Expand Record and for Miscellaneous Relief,” see Pet’r’s Pet. to Expand R., ECF No. 5,

which the Court construed as a Motion to Stay these habeas proceedings and granted the

request. Murphy v. McKee, No. 09-CV-10714, 2010 WL 199989 (E.D. Mich. Jan. 14,

2010). Murphy requested a stay so that he could return to the state courts to exhaust

additional claims with respect to the effectiveness of both his trial and appellate counsel.

In its Order, the Court also directed that the Habeas Petition would be stayed provided that

Murphy: (i) presented his claims to the state court within sixty days of the Court’s Order

staying the Petition; and (ii) asked the Court to lift the stay within sixty days of exhausting

his state-court remedies. Id. at *3.

The Court finds that Murphy has complied with its Order; his case is now ripe for

consideration. Murphy has exhausted his state-court remedies through collateral review

in state court regarding his ineffective-assistance-of-trial-and-appellate-counsel claims. He

filed a Motion for Relief for Judgment, pursuant to Michigan’s court rule 6.500, which the

state trial court denied on April 20, 2011. People v. Murphy, No. 06-013886-01 (Wayne

Cnty. 3rd Cir. Ct. Crim. Div. Apr. 20, 2011). He then filed a Delayed Application for Leave

to Appeal the denial of his Motion for Relief from Judgment with the Michigan Court of

Appeals, which was denied on December 27, 2011. People v. Murphy, No. 306061 (Mich.

Ct. App. Dec. 27, 2011). His Application for Leave to Appeal that decision was denied by

the Michigan Supreme Court on September 4, 2012. People v. Murphy, 492 Mich. 865,

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819 N.W.2d 869 (2012). Because Murphy timely returned to this Court asking for the stay

to be lifted and the case to be reopened, the Court will grant his request, lift the stay, and

deem the Amended Petition filed. “Federal courts have the power to order that a habeas

petition be reinstated upon timely request by a habeas petitioner.” See Bennett v. Howes,

No. 2:06-CV-13730, 2011 WL 718589 (E.D. Mich. Feb. 22, 2011) (citation omitted).

The Court also orders that the Clerk of the Court serve a copy of the Amended

Petition and a copy of this Order on Respondent and on the Attorney General for the State

of Michigan by first class mail, as provided in Rule 4 of the Rules Governing § 2254 Cases,

Rule 4. See Coffee v. Harry, 2005 WL 1861943 (E.D. Mich. Aug. 2, 2005).

The Court further orders Respondent to file a Supplemental Response to the

Amended Petition within sixty days from the date of this Order. This Court has the

discretion under the rules governing responses in habeas-corpus cases to set a deadline

for a response to a petitioner’s habeas petition. Erwin v. Elo, 130 F. Supp. 2d 887, 891

(E.D. Mich. 2001); 28 U.S.C. § 2243.

Respondent is also directed to provide this Court with any additional Rule 5

materials at the time that he files his Answer. The habeas-corpus rules require that the

respondents attach the relevant portions of the transcripts of the state-court proceedings,

if available, and the court may also order, on its own motion, or upon a petitioner’s request,

that further portions of the transcripts be furnished. Griffin v. Rogers, 308 F. 3d 647, 653

(6th Cir. 2002); Rules Governing § 2254 Cases, Rule 5, 28 U.S.C. foll. § 2254.

Finally, the Court will afford Murphy forty-five days from the receipt of Respondent’s

Answer to file a Reply Brief, if he so chooses. Rule 5(e) of the Rules Governing § 2254

Cases, 28 U.S.C. foll. § 2254 states that a habeas petitioner “may submit a reply to the

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respondent’s answer or other pleading within a time fixed by the judge.” See Baysdell v.

Howes, No. 04-CV-73293-DT, 2005 WL 1838443, *4 (E.D. Mich. Aug. 1, 2005).

For the reasons states, it is ORDERED as follows:

(1) Murphy’s “Amended/Supplemental [Petition] for Writ of Habeas Corpus” [ECF

No. 17] is construed as a Motion to Lift the Stay, which the Court grants. The Amended

Petition is deemed as filed.

(2) The Clerk of Court is directed to administratively reopen this matter and serve

a copy of the Amended Petition, and a copy of this Order, on Respondent and the Attorney

General by first class mail.

(3) Respondent may file a Supplemental Answer to the allegations in the Amended

Petition, and any additional Rule 5 materials, in accordance with Rule 5, Rules Governing

Section 2254 Cases, within sixty days from the date of this Order.

(4) Murphy shall have forty-five days from the date that he receives the Answer to

file a Reply Brief.

SO ORDERED.

s/Nancy G. Edmunds

Nancy G. Edmunds

United States District Judge

Dated: November 29, 2012

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

on November 29, 2012, by electronic and/or ordinary mail.

s/Carol A. Hemeyer

Case Manager

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