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Wilson v. McKee

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

April 27, 2015

VICTOR WILSON, Petitioner,
v.
KENNETH McKEE, Respondent.

ORDER GRANTING PETITIONER'S MOTION TO STAY PROCEEDINGS AND HOLD PETITION IN ABEYANCE AND ADMINISTRATIVELY CLOSING CASE

VICTORIA A. ROBERTS, District Judge.

This is a habeas case under 28 U.S.C. § 2254. Petitioner Victor Wilson is a state inmate at the Bellamy Creek Correctional Facility in Ionia, Michigan. He challenges his convictions for two counts of second-degree criminal sexual conduct. In addition to his habeas petition, Petitioner filed a Motion to Stay Proceedings and Hold Habeas Petition in Abeyance. The Court grants the motion.

I.

Petitioner was convicted by a jury in Wayne County Circuit Court of two counts of second-degree criminal sexual conduct. He was sentenced as a fourth habitual offender to two concurrent terms of 30 to 50 years' imprisonment.

Petitioner filed an appeal of right in the Michigan Court of Appeals presenting these claims: (i) other act evidence was improperly admitted; (ii) ineffective assistance of trial counsel; (iii) prosecutorial misconduct; and (iv) trial court improperly exceeded sentencing guidelines. The Michigan Court of Appeals affirmed his convictions and sentences. People v. Wilson, No. 296307, 2011 WL 6267278 (Mich. Ct. App. Dec. 15, 2011).

Petitioner filed an application for leave to appeal to the Michigan Supreme Court raising the same claims raised in the Michigan Court of Appeals. The Michigan Supreme Court denied the application. People v. Wilson, 493 Mich. 882 (Mich. Nov. 7, 2012).

Petitioner then filed a motion for relief from judgment in the trial court, raising two additional ineffective assistance of trial counsel claims. The trial court denied the motion. People v. Wilson, No. 09-002410-FC (Wayne County Cir. Ct. May 2, 2013). Both state appellate courts denied Petitioner's applications for leave to appeal the trial court's decision. People v. Wilson, No. 317678 (Mich. Ct. App. Oct. 25, 2013); People v. Wilson, 495 Mich. 993 (Mich. Apr. 28, 2014).

Petitioner then filed the pending habeas corpus petition. He raises the same claims raised on direct and collateral review in state court. He also filed a motion to stay this proceeding so he may return to state court and exhaust additional, newly-discovered claims.

II.

State prisoners must exhaust available state remedies for each of the claims presented in a habeas petition before seeking a federal writ of habeas corpus. 28 U.S.C. § 2254(b)(1). Petitioner states that, although the claims raised in the petition are exhausted, he would like to raise additional, unexhausted claims: (i) newly-discovered evidence establishes his innocence; (ii) trial counsel was ineffective in failing to investigate and previously discover this evidence; and (iii) appellate counsel was ineffective in failing to investigate and locate exculpatory witnesses. Petitioner seeks a stay so he may return to state court to exhaust these claims.

A federal court may stay a federal habeas petition and hold further proceedings in abeyance pending resolution of state court post-conviction proceedings if outright dismissal of a habeas petition would jeopardize the timeliness of a future petition, there is good cause for the petitioner's failure to exhaust those claims, the unexhausted claims are not "plainly meritless, " and "there is no indication that the petitioner engaged in intentionally dilatory litigation tactics." Rhines v. Weber, 544 U.S. 269, 278 (2005).

In this case, the outright dismissal of the petition, even without prejudice, may preclude future consideration of Petitioner's claims in this court due to the expiration of the statute of limitations. See 28 U.S.C. § 2241(d)(1). Staying a habeas corpus proceeding is appropriate where a second, exhausted habeas petition may be time barred by the AEDPA's statute of limitations. See Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002). The Court finds that outright dismissal of the petition would jeopardize the timeliness of any future habeas petition.

The Supreme Court did not define "good cause" in Rhines, nor has the Sixth Circuit Court of Appeals done so. See Bates v. Knab, 2011 WL 2785244, *5 (S.D. Ohio July 15, 2011), citing Hnatiuk v. Trombley, 2008 WL 3305157 (E.D. Mich. Aug. 11, 2008). A number of federal courts have concluded that the Rhines good cause requirement is less stringent than the good cause showing required in the context of procedural default. See Lockridge v. Ludwick, 2009 WL 5217592, *3 (E.D. Mich. Dec. 28, 2009) (holding that "good cause under Rhines is something less than the cause needed to excuse a procedural default"); Bryant v. Greiner, 2006 WL 1675938, *5 (S.D. N.Y. June 15, 2006) (same); Rhines v. Weber, 408 F.Supp.2d 844, 849 (D.S.D. 2005) (on remand, applying a more expansive definition of "good cause" than the showing needed for cause to excuse a procedural default); Jackson v. Roe, 425 F.3d 654, 662 (9th Cir. 2005) (holding that "good cause" standard prescribed in Rhines does not require a showing of "extraordinary circumstances").

Petitioner asserts ineffective assistance of appellate counsel as cause for his failure to exhaust these claims. An appellate attorney cannot be expected to raise his own ineffective assistance on appeal. Combs v. Coyle, 205 F.3d 269, 276 (6th Cir. 2000). ...


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