United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PETITIONER'S MOTION TO STAY AND HOLD THE PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE [Dkt. 21]
PAUL D. BORMAN, District Judge.
This is a habeas corpus case filed by a Michigan prisoner incarcerated at the Earnest C. Brooks Correctional Facility. Petitioner, Angelo Wise, was convicted after a jury trial in the Wayne Circuit Court of first-degree felony murder, MICH. COMP. LAWS § 750.316, armed robbery, MICH. COMP. LAWS § 750.529, possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b, felon in possession of a firearm, MICH. COMP. LAWS § 750.224f, and carrying a concealed weapon, MICH. COMP. LAWS § 750.227. As a result of these convictions, Petitioner is serving concurrent sentences of life without parole for the murder conviction, 50-to-75 years for the armed robbery conviction, 5-to-20 years for the felon in possession conviction and the concealed weapon conviction, and a consecutive to 2-year term for the felony-firearm conviction.
The petition raises eleven claims: 1) the prosecution did not exercise due diligence in attempting to locate witnesses for trial, 2) Petitioner's trial counsel provided ineffective assistance, 3) the trial court erroneously instructed the jury, 4) the prosecutor committed misconduct, 5) Petitioner's appellate counsel provided ineffective assistance of counsel prior to filing the appellate brief, 6) the jury's oath was defective, 7) Petitioner's appellate counsel was ineffective for failing to raise certain claims in the appellate brief, 8) Petitioner's convictions for carrying a concealed weapon, felon in possession of a weapon, murder, and armed robbery violate his right against Double Jeopardy, 9) insufficient evidence was presented at trial to sustain the element of malice to support Petitioner's second-degree murder conviction, 10) insufficient evidence was presented at trial to sustain Petitioner's firstdegree felony murder conviction, and 11) Petitioner was erroneously denied jail credit.
Petitioner has filed a series of motions, the last of which seeks to stay his petition. His motion and amended motion for guidance assert he has new evidence that the prosecutor and police willfully fabricated and withheld vital exculpatory evidence from the defense. The motions assert this new evidence was recently discovered by family members who have been assisting him. His motion for stay asks for the Court to stay his habeas petition while he returns to state court to present his new claims there. For the reasons stated below, the Court holds the petition in abeyance and stays the proceedings under the terms outlined in this opinion to permit Petitioner to exhaust his new claims.
Following his conviction and sentence, Petitioner filed a claim of appeal in the Michigan Court of Appeals. His appellate attorney filed a brief raising the following claim:
I. Defendant is entitled to a new trial where the trial court erred in finding due diligence as to Mr. Simmons, an endorsed witness.
Petitioner filed a pro se supplemental brief, raising an additional four claims:
I. Trial counsel failed to perform to an objective standard and provide effective assistance during trial preparation and investigation and during the trial.
II. The trial court erred by not instructing the jury regarding self-defense, manslaughter, or lost evidence.
III. The prosecutor engaged in multiple instances of prejudicial misconduct.
IV. Defendant was denied the effective assistance of appellate counsel for failing to request an evidentiary hearing or timely provide transcripts for appeal.
The Michigan Court of Appeals affirmed Petitioner's conviction in an unpublished opinion. People v. Wise, No. 286957, 2010 WL 364190 (Mich. Ct. App. Feb. 2, 2010).
Petitioner subsequently filed an application for leave to appeal in the Michigan Supreme Court, raising the same claims as in the Michigan Court of Appeals. The Michigan Supreme Court denied the application because it was not persuaded that the questions presented should be ...