The opinion of the court was delivered by: Hon. Bernard A. Friedman
ORDER OVERRULING PETITIONER'S OBJECTIONS TO THE MAGISTRATE JUDGE'S ORDER DENYING PETITIONER'S MOTION TO HOLD PETITION IN ABEYANCE
This matter is presently before the court on plaintiff's objections to Magistrate Judge Komives' March 31, 2010, order denying petitioner's motion to hold his habeas petition in abeyance. Pursuant to E.D. Mich. 7.1(f)(2), the court shall rule on the objections without hearing oral argument.
Petitioner's motion sought to persuade the court to apply the "stay and abeyance" procedure to this case. As explained by the Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005), this procedure can be used to address a procedural problem posed by "mixed" habeas petitions, i.e., those containing both exhausted and unexhausted claims. If this procedure is used the case is stayed and held in abeyance, rather than dismissed, while petitioner exhausts his state court remedies as to his unexhausted claims. "The procedure serves as an alternative to simply denying a petition containing unexhausted claims when the failure to retain jurisdiction would foreclose federal review of a meritorious claim because of the lapse of AEDPA's one-year limitations period." In re Bowen, 436 F.3d 699, 703 n.2 (6th Cir. 2006). As the magistrate judge correctly noted, however, the stay and abeyance procedure should not be used if (1) petitioner fails to show good cause for his failure to exhaust his state court remedies, (2) the unexhausted claims are "plainly meritless" or (3) "petitioner engages in abusive litigation tactics or intentional delay." Rhines, 544 U.S. at 277-78.
In the present case, the magistrate judge denied petitioner's motion to hold his petition in abeyance because the unexhausted claims are meritless, both procedurally and substantively.*fn1 The procedural issue identified by the magistrate judge is that petitioner has already filed one motion for relief from judgment and he is therefore precluded from filing another such motion. The substantive issue is that the unexhausted claims relate to one matter of state law which is not reviewable by a federal habeas court (i.e., whether the trial court, while the appeal was pending, had jurisdiction to correct a clerical error in its judgment) and one matter of federal law which is frivolous (i.e., whether petitioner had a constitutional right to be present and represented by counsel at his "resentencing"). In his objections, petitioner argues that the Michigan Court Rules permit the filing of a second or subsequent motion for relief from judgment if it is based on new evidence, and that at the time he filed his first such motion he was unaware that his judgment of sentence had been amended. Petitioner also argues that his unexhausted claims are substantively meritorious.
From his pleadings and the documents attached thereto, it is not clear when petitioner first learned that the judgment in his criminal case was amended to reflect the trial judge's oral pronouncement at the sentencing hearing that she was sentencing petitioner as a habitual offender.
If, as petitioner asserts, he did not learn of the amendment until after he filed his motion for relief from judgment,*fn2 then his discovery of the amendment might qualify as "new evidence that was not discovered before the first such motion," thereby enabling him to avoid the procedural bar and raise the issue in a second motion for relief from judgment. MCR 6.502(G)(2).
However, even giving petitioner the benefit of the doubt as to this procedural issue, the court nonetheless agrees with the magistrate judge that petitioner's motion was properly denied because his unexhausted claims are, substantively, "plainly meritless." Petitioner acknowledges that at the sentencing hearing, conducted on January 21, 2005, the trial judge indicated she was sentencing petitioner as a habitual offender.*fn3 The "amended judgment" dated May 23, 2005, did nothing more than conform the written judgment to this oral pronouncement and added to the original judgment the words "sentenced as habitual 3rd" in the "other information" column adjacent to the sentence on each count. Whether the trial court had jurisdiction to make such an amendment while the appeal was pending*fn4 is, as the magistrate judge correctly noted, an issue of state law that simply is not cognizable as a habeas claim. Further, while petitioner had the right to attend and be represented by counsel at every critical stage of his case, the correction of a clerical error such as this is not such a stage. Therefore, the magistrate judge's conclusions as to the substantive merit of petitioner's unexhausted claims are neither clearly erroneous nor contrary to law. See Fed. R. Civ. P. 72(a). Accordingly,
IT IS ORDERED that petitioner's objections are overruled and the magistrate judge's order denying petitioner's motion to hold his petition in abeyance is affirmed.
BERNARD A. FRIEDMAN SENIOR UNITED STATES ...