United States District Court, Eastern District of Michigan, Southern Division
Mona K. Majzoub, Magistrate Judge.
OPINION AND ORDER GRANTING PETITIONER’S MOTION FOR STAY AND ABEYANCE  AND ADMINISTRATIVELY CLOSING THE CASE
LAURIE J. MICHELSON, UNITED STATES DISTRICT JUDGE.
Petitioner Mark Abraitis, an inmate at the Chippewa Correctional Facility in Kincheloe, Michigan, filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. 1, Pet.) The Petition challenges Abraitis’ state-court convictions for, among other crimes, first-degree premeditated murder, Michigan Compiled Laws § 750.316(1)(a).
On January 5, 2015, Abraitis filed a Motion to Stay the Proceedings and Hold the Petition in Abeyance. (Dkt. 7, Mot. to Stay.) He wishes to return to state court to exhaust a claim of “jury bias.” (Id. at 1.) For the reasons that follow, the Court will grant the request, stay the Petition, establish conditions under which Abraitis must proceed, and administratively close the case.
Abraitis was convicted following a jury trial in the Saginaw County Circuit Court. His conviction was affirmed on appeal. People v. Abraitis, No. 309955 (Mich. Ct. App. Feb. 21, 2013); lv. den. 495 Mich. 852; 836 N.W.2d 170 (2013). On November 14, 2014, Abraitis filed his habeas petition. He seeks relief on the same claims that he raised and exhausted in the Michigan appellate courts. (Pet. at 6-11.)
Abraitis now seeks to hold his Petition in abeyance while he returns to state court to exhaust an additional claim regarding jury bias. (Mot. to Stay at 1.) He says that he only recently discovered the factual predicate of this claim. Apparently, a friend of his logged in to Facebook after the trial and made discoveries regarding two of the jurors in Abraitis’ case. According to Abraitis, one juror contacted the murder victim’s family on Facebook after the trial, expressed her condolences, and “bragged” that she had never considered convicting Abraitis of the lesser charge of second-degree murder. (Id. at 2.) Another juror made similar statements via her Facebook account. (Id. at 3.) And the first juror thanked the second for supporting her during the deliberations. (Id.)
Abraitis contends that this evidence shows that at least some of the jurors had a preconceived bias against him and failed to answer truthfully during voir dire. (Id. at 4.) Respondent has not filed a response to the Motion to Stay. (See Dkt.)
A federal district court has authority to abate or dismiss a federal habeas action pending resolution of state post-conviction proceedings. See Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). This is so even with respect to fully exhausted federal habeas petitions. See Bowling v. Haeberline, 246 F. App’x 303, 306 (6th Cir. 2007) (a habeas court is entitled to delay a decision in a habeas petition that contains only exhausted claims “when considerations of comity and judicial economy would be served”) (quoting Nowaczyk v. Warden, New Hampshire State Prison, 299 F.3d 69, 83 (1st Cir, 2002)).
In many instances though, the outright dismissal of a habeas petition to allow a petitioner to exhaust state remedies might result in a time-bar when the petitioner returns to federal court due to the one-year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act (“AEDPA”). 28 U.S.C. 2244(d)(1); see also Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002). In this case, AEDPA’s one-year statute of limitations does pose a concern, as the Michigan Supreme Court denied Arbraitis’ application for leave to appeal on September 3, 2013 and he filed his Petition on November 19, 2014, leaving him less than a month on the one-year clock at the time he filed this case. Further, there is no statutory tolling while a habeas petition is pending before a federal court. Duncan v. Walker, 533 U.S. 167, 173 (2001). However, equitable tolling is available in limited circumstances. See Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002).
The Supreme Court has addressed the procedure by which a district court may stay a “mixed” petition (one that consists of both exhausted and unexhausted claims). See Rhines v. Weber, 544 U.S. 269 (2005) (“[S]tay and abeyance is only appropriate when the district court determines there was good cause for the petitioner’s failure to exhaust his claims . . . even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his claims are plainly meritless . . . . [and] if a petitioner engages in abusive litigation tactics or intentional delay, the district court should not grant him a stay at all.”). But Rhines is not directly applicable to Abraitis’ situation, for his current Petition contains only exhausted claims.
This Court recently considered a motion to stay a fully-exhausted habeas petition, concluding that
where, as here, a habeas petition contains only exhausted claims, and the petitioner seeks to stay the petition so that he can return to state court on unexhausted claims not yet part of the petition, the Court believes that its discretion to stay the petition is informed both by the potential for parallel federal habeas and state post-conviction proceedings and Rhines. Chief among these considerations is the apparent merit of the unexhausted and exhausted claims, and, relatedly, whether this Court would benefit from a state-court ruling on the unexhausted claims. But Rhines’ ‘good cause’ requirement is not irrelevant: the Court is less ...