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Foster v. Warren

United States District Court, Eastern District of Michigan, Southern Division

April 29, 2015

NATALIE FOSTER, Petitioner,
v.
MILLICENT WARREN, Respondent.

OPINION AND ORDER GRANTING PETITIONER’S MOTION TO STAY [#7] AND HOLDING THE PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE [#8]

HONORABLE GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE

I. INTRODUCTION

The present matter is a habeas corpus case filed by a Michigan prisoner incarcerated at the Huron Valley Women’s Correctional Facility. Petitioner filed the immediate petition for writ of habeas corpus on February 10, 2015.

After a jury trial in the Wayne County Circuit Court, Petitioner was convicted of racketeering, Mich. Comp. Laws § 750.159i(1); conspiring to commit identity theft and to the illegal use of a financial transaction device, Mich. Comp. Laws § 750.157a; four counts of larceny from a building, Mich. Comp. Laws § 750.360; three counts of illegally using a financial transaction device, Mich. Comp. Laws § 750.157q; and three counts of identity theft, Mich. Comp. Laws § 445.65.

Her petition for writ of habeas corpus now raises the five following claims. That: (1) the trial court admitted unfairly prejudicial prior bad acts evidence; (2) the trial court erred in failing to grant Petitioner’s motions for a mistrial; (3) Petitioner was denied the effective assistance of counsel; (4) insufficient evidence was presented at trial to sustain Petitioner’s convictions; and (5) trial counsel was ineffective for failing to move to quash the criminal charging document.

Presently before the Court is Petitioner’s motion to stay the petition for writ of habeas corpus, filed on March 16, 2015. Doc. No. 7. She asserts that she has discovered new claims concerning the prosecution’s suppression of evidence and other misconduct. In addition, she wishes to exhaust her state court remedies with respect to her new claims before proceeding on federal habeas review. Doc. No. 8. For the reasons stated below, the Court holds the petition in abeyance and stays the proceedings under the terms outlined in this opinion.

II. BACKGROUND

Following her conviction in Wayne County Circuit Court, Petitioner filed an appeal of right in the Michigan Court of Appeals. Petitioner raises what now forms her five habeas claims and the basis of her appeal. The state appellate court affirmed her conviction. People v. Foster, No. 309365 (Mich. Ct. App. Nov. 14, 2013). Petitioner then sought leave to appeal in the Michigan Supreme Court. Her application was subsequently denied. People v. Foster, No. 148487 (Mich. Apr. 28, 2014). Petitioner filed the instant petition on February 10, 2015.

III. DISCUSSION

The Antiterrorism and Effective Death Penalty Act (“AEDPA”) requires a state prisoner who seeks federal habeas relief to exhaust available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and (c); see Picard v. Connor, 404 U.S. 270, 275-78 (1971). The exhaustion requirement thus mandates dismissal of a habeas petition containing claims that a petitioner has a right to raise in the state courts but has failed to do so. See Welch v. Burke, 49 F.Supp.2d 992, 998 (E.D. Mich. 1999).

Although exhaustion is not a jurisdictional matter, "it is a threshold question that must be resolved." See Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009). Therefore, each claim must be reviewed for exhaustion before a federal court may review any claim on the merits. Id.

In addition to the exhaustion requirement, the AEDPA imposes a one-year statute of limitations period for the filing of a federal habeas corpus petition. Pace v. DiGuglielmo, 544 U.S. 409, 410 (2005). The limitations period begins to run from the latest of the date “on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review.’” 28 U.S.C. § 2244(d). The limitations period is tolled, however, if a “properly filed” application for state post-conviction or other collateral review of the judgment is pending. 28 U.S.C. § 2244(d)(2).

While not the central question in the present matter, whether an application for state-conviction review has been “properly filed” has engendered some legal scrutiny. In Pace, the Supreme Court held that failure to file a habeas petition pursuant to a time requirement, such as the statute of limitations, constitutes an “improperly filed” habeas petition. Pace, 544 U.S. at 417.

The Court suggested, however, that “[a] prisoner seeking state post[-]conviction relief might avoid [a timing] predicament … by filing a ‘protective’ petition in federal court[.]” Id. at 416. The habeas petitioner should further “ask[] the court to stay and abey the federal habeas proceedings until ...


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