United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PETITIONER'S MOTION TO STAY AND ABEYANCE OF HABEAS PROCEEDING , HOLDING IN ABEYANCE THE PETITION FOR WRIT OF HABEAS CORPUS , AND ADMINISTRATIVELY CLOSING THE CASE
GERSHWIN A. DRAIN, District Judge.
Douglas Jackson ("Petitioner"), confined at the Brooks Correctional Facility in Muskegon Heights, Michigan, filed a Petition for Writ of Habeas Corpus  pursuant to 28 U.S.C. § 2254. In the Petition, Petitioner challenges his convictions and sentences for three counts of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520(b); one count of assault with intent to do great bodily harm, MICH. COMP. LAWS § 750.84; and one count of unlawful imprisonment, MICH. COMP. LAWS § 750.349b. See Dkt. No. 1. Petitioner seeks habeas relief for the claims that he raised on his two appeals before the Michigan Court of Appeals and the Michigan Supreme Court. See id.
Petitioner also filed a Motion to Stay and Abeyance of Habeas Proceeding , seeking to hold the Petition in abeyance and 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. See Dkt. No. 2. For the reasons discussed below, the Court will GRANT the Motion to Stay and Abeyance of Habeas Proceeding . The Court will hold the Petition in abeyance and stay the proceedings under the terms outlined in this opinion so Petitioner may exhaust his additional claims in state court. The Court will also administratively close the case.
Petitioner was convicted following a jury trial in the Wayne County Circuit Court. Petitioner's conviction was affirmed on appeal, although the case was remanded for resentencing. See People v. Jackson, No. 295994, 2011 WL 1519654 (Mich. Ct. App. Apr. 21, 2011), lv. den., 490 Mich. 911, 805 N.W.2d 191 (2011). After re-sentencing, Petitioner's sentence was affirmed on appeal. See People v. Jackson, No. 308329, 2013 WL 4746759 (Mich. Ct. App. Sept. 3, 2013), lv. den., 495 Mich. 935, 843 N.W.2d 209 (2014).
A. LEGAL STANDARD
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). Moreover, a federal district court is authorized to stay fully exhausted federal habeas petitions pending the exhaustion of other claims in the state courts. See Nowaczyk v. Warden, New Hampshire State Prison, 299 F.3d 69, 77-79 (1st Cir. 2002) (holding that district courts should "take seriously any request for a stay."); Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000); see also Bowling v. Haeberline, 246 Fed.App'x 303, 306 (6th Cir. 2007) (quoting Nowaczyk, 299 F.3d at 83, to find that 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").
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. See Sitto v. Bock, 207 F.Supp.2d 668, 676 (E.D. Mich. 2002); Hudson v. Martin, 68 F.Supp.2d 798, 800 (E.D. Mich. 1999). There is not a 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; however, in order 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. See Nowaczyk, 299 F.3d at 82 (internal quotation omitted); see also Bowling, 246 Fed.App'x at 306 (finding the district court erred in dismissing a petition containing only exhausted claims, as opposed to exercising its jurisdiction over petition, merely because petitioner had independent proceeding pending in state court involving other claims).
B. LEGAL ANALYSIS
Here, the Court will grant Petitioner's motion to hold his Petition in abeyance while he returns to the state courts to exhaust his additional claims. 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 United States 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, 161 L.Ed.2d 669 (2005) (citing Rhines v. Weber, 544 U.S. 269, 278, 125 S.Ct. 1528, 1535, 161 L.Ed.2d 440 (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, 544 U.S. at 278.
Here, Petitioner's claims do not appear to be "plainly meritless." Wagner v. Smith, 581 F.3d 410, 419 (6th Cir. 2009). Moreover, Petitioner asserts that he did not previously raise these claims in the state courts due to the ineffective assistance of appellate counsel. Id., at 419, nn. 4 and 5. Finally, it does not appear that Petitioner has engaged in "intentionally dilatory ...