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Mann v. Rivard

United States District Court, E.D. Michigan, Southern Division

April 17, 2015

DARRELL MANN, Petitioner,
v.
STEVEN RIVARD, Respondent.

OPINION AND ORDER GRANTING PETITIONER'S MOTION TO STAY, HOLDING IN ABEYANCE THE PETITION FOR WRIT OF HABEAS CORPUS, AND ADMINISTRATIVELY CLOSING THE CASE

PATRICK J. DUGGAN, District Judge.

I. INTRODUCTION

Petitioner Darrell Mann, who is confined at the Lakeland Correctional Facility in Coldwater, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for three counts of third-degree criminal sexual conduct, Mich. Comp. Laws § 750.520d(1)(b), and one count of fourth-degree criminal sexual conduct, Mich. Comp. Laws § 750.750.520e(1)(b).

Petitioner has now filed a motion to hold the petition in abeyance to permit him to return to the state courts to present additional claims that have not been exhausted with the state courts and that are not included in his current habeas petition. For the reasons stated below, the Court will grant the motion, hold the petition in abeyance, and stay the proceedings under the terms outlined in this Opinion and Order. The Court will also administratively close the case.

II. BACKGROUND

Petitioner was convicted following a jury trial in the Wayne County Circuit Court. Petitioner's conviction was affirmed on appeal. People v. Mann, No. 308706, 2013 WL 2278136 (Mich. Ct. App. May 23, 2013), leave denied 495 Mich. 899, 839 N.W.2d 213 (2013).

Petitioner filed a petition for writ of habeas corpus, seeking habeas relief on the three grounds that he raised in his appeal of right before the Michigan Court of Appeals.

Petitioner has filed a motion to hold the petition in abeyance so that he can return to the state courts to raise additional claims that have not been exhausted with the state courts.

III. ANALYSIS

A federal district court has authority to abate or dismiss a federal habeas action pending resolution of state post-conviction proceedings. Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). However, to stay federal proceedings and hold a habeas petition in abeyance pending resolution of state court proceedings, there must be exceptional or unusual circumstances. Sitto v. Bock, 207 F.Supp.2d 668, 676 (E.D. Mich. 2002). A federal district court is authorized to stay fully exhausted federal habeas petitions pending the exhaustion of other claims in the state courts. Nowaczyk v. Warden, New Hampshire State Prison, 299 F.3d 69, 77-79 (1st Cir. 2002); see also Bowling v. Haeberline, 246 F.App'x 303, 306 (6th Cir. 2007) (acknowledging that a habeas court is entitled to delay decision in a habeas petition that contains fully exhausted claims "when considerations of comity and judicial economy would be served") (quoting Nowaczyk, 299 F.3d at 83). Indeed, although there is no bright-line rule that a district court can never dismiss a fully-exhausted habeas petition because of the pendency of unexhausted claims in state court, for a federal court to justify departing from the "heavy obligation to exercise jurisdiction, " there must be some compelling reason to prefer a dismissal over a stay. Nowaczyk, 299 F.3d at 82 (internal quotation omitted); see also Bowling, 246 F.App'x at 306 (district court erred in dismissing petition containing only exhausted claims merely because petitioner had independent proceeding pending in state court involving other claims).

The Court will grant Petitioner's motion to hold the petition in abeyance while he returns to state court to exhaust his unexhausted claim. The outright dismissal of the petition, albeit without prejudice, might result in preclusion of consideration of Petitioner's claims in this Court due to the expiration of the one year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d)(1). A common circumstance calling for abating a habeas petition arises when the original petition was timely filed, but a second, exhausted habeas petition would be time barred by the AEDPA's statute of limitations. See Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002).

The U.S. Supreme Court suggested that a habeas petitioner who is concerned about the possible effects of his state post-conviction filings on the AEDPA's statute of limitations could file a "protective" petition in federal court and then ask for the petition to be held in abeyance pending the exhaustion of state post-conviction remedies. See Pace v. DiGuglielmo, 544 U.S. 408, 416; 125 S.Ct. 1807, 1813 (2005). A federal court may stay a federal habeas petition and hold further proceedings in abeyance pending resolution of state court post-conviction proceedings, if there is good cause for failure to exhaust and the unexhausted claims are not "plainly meritless." Rhines v. Weber, 544 U.S. 269, 278, 125 S.Ct. 1528, 1535 (2005).

Petitioner's claims do not appear to be "plainly meritless." Further, Petitioner asserts that he did not previously raise these claims in the state courts due to the ineffective assistance of appellate counsel. Finally, it does not appear that Petitioner has engaged in "intentionally dilatory tactics."

When a district court determines that a stay is appropriate pending exhaustion of state court remedies, the district court "should place reasonable time limits on a petitioner's trip to state court and back." Rhines, 544 U.S. at 278, 125 S.Ct. at 1535. To ensure that Petitioner does not delay in exhausting his state court remedies, the Court imposes upon Petitioner time limits within which he must proceed. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). Petitioner must present his claims in state court by filing a post-conviction motion for relief from judgment with the state trial court within sixty days from the date of this Opinion and Order. Further, he must ask this Court to lift the stay within sixty days of exhausting his state court remedies. ...


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