Hall v. MICHIGAN DEPARTMENT OF CORRECTIONS

Order Michigan Supreme Court
Lansing, Michigan

April 21, 2006 Clifford W. Taylor,
Chief Justice

128968 Michael F. Cavanagh
& (21) Elizabeth A. Weaver
(23) Marilyn Kelly
(25) Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman,
Justices

BRYAN HALL,
Petitioner-Appellant,
v SC: 128968
COA: 259951
Ingham CC: 04-000840-AA
MICHIGAN DEPARTMENT OF
CORRECTIONS,
Respondent-Appellee.
_________________________________________/

By order of December 15, 2005, this Court directed the Attorney General, on
behalf of the respondent Department of Corrections, to answer the petitioner’s application
for leave to appeal. The answer having been filed, the application for leave to appeal the
May 26, 2005 order of the Court of Appeals is again considered, and it is DENIED,
because we are not persuaded that the question presented should be reviewed by this
Court. The motion to add issues is DENIED. The motion to file amended reply brief is
GRANTED.

CORRIGAN, J., concurs and states as follows:

I concur in the order denying leave to appeal. Petitioner, a prisoner in a state
correctional facility, was found guilty at a formal disciplinary hearing of being an
accomplice to an attempted escape and to possession of dangerous contraband. His
request for a rehearing was denied. He then filed a petition for appellate review in the
circuit court, but the court dismissed the petition because it was not filed within 60 days
of the denial of the motion for rehearing, as required by MCL 791.255(2). The Court of
Appeals denied petitioner’s application for leave to appeal.

Petitioner then applied for leave to appeal in this Court. In his application,
petitioner attempted to explain why his petition was not filed timely in the circuit court.
He asserted that he had mailed the appeal documents to a friend before the filing
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deadline, and that when the friend mailed the documents back to the prison, the prison
officials refused to turn the papers over to petitioner because they contained information
regarding another prisoner’s escape.

Justice Kelly’s dissenting statement repeats the above accusations that petitioner
has leveled, but Justice Kelly fails to mention that this Court has already ordered,
received, and considered a response from the Attorney General on this matter. In his
response, the Attorney General states that an administrative hearing was held, at which
the rejection of the mail was upheld. There was no indication at the hearing that the
rejected mail delivery contained petitioner’s appeal papers.

The Attorney General also attached a response to a grievance that was prepared
following the administrative hearing upholding the rejection of the mail. This grievance
response reflects that the mail was not allowed into the correctional facility for the
following reasons:

1. It was for the purposes of operating a business enterprise from
within the facility.
2. The publications enclosed in the mail were not received directly
from a vendor.
3. It depicted, encouraged, or described methods of escape from a
correctional facility.
4. It was written in code, or in a foreign language that could not be
interpreted by institutional staff to the extent necessary to conduct an
effective search. [Grievance response (emphasis added).]
In any event, the Attorney General states that petitioner had full access to the
prison law library and copy facilities. Petitioner could easily have prepared and mailed
the simple, two-page petition form that was required to file a timely appeal in the circuit
court. Thus, the rejection of the mail did not affect petitioner’s ability to perfect a timely
appeal.

In light of the Attorney General’s response, I find no basis to conclude that the
prison officials were responsible for petitioner’s untimely filing of his appeal.
Accordingly, I concur in the denial of the application for leave to appeal.

KELLY, J., dissents and states as follows:

Petitioner, an inmate in the state prison system, was found guilty at a formal
disciplinary hearing of being an accomplice to an attempted escape and to possession of
dangerous contraband. He sought leave to appeal in the circuit court, but his papers
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arrived after the expiration of the 60-day deadline. The reason for his late filing,
petitioner claims, is that prison officials delayed his application.

Petitioner asserts that he mailed appeal papers to a friend for advice and
photocopying well before the filing deadline. The friend mailed the requested copies to
petitioner at the prison, and they were delivered there on April 30, 2004. The deadline
for filing petitioner’s appeal was May 6. But the prison officials refused to turn the
papers over to petitioner because, they asserted, they contained information on another
prisoner’s escape.

The prison officials did not notify petitioner that the papers were being held until
May 4, 2004. Petitioner immediately requested an administrative hearing, and one was
held on May 18, 2004. The prison officials still refused to give petitioner the papers after
the conclusion of the hearing. Petitioner relates that he then prepared new papers and
mailed them to the court as a delayed petition on May 26, 2004. The petition was
received and filed at the circuit court on June 2, 2004, 27 days after the deadline. The
circuit court dismissed petitioner’s appeal because a delayed application is not permitted
under the statute.

After the Court of Appeals refused to hear his case, petitioner appealed to this
Court. He urges that his application for leave should be granted and that the original
filing deadline should be deemed tolled. He claims that, but for the prison officials’
conduct, his appeal would have been filed on time.

I would remand this case to the circuit court for a determination whether petitioner
could have filed within the deadline but for the acts of the prison officials. If the court
were to find that the prison officials precluded petitioner’s timely filing, the appeal
should be heard as if the petition had been filed on time.

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 21, 2006 _________________________________________
l0418 Clerk