United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION FOR
STAY, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT
PREJUDICE, AND DENYING CERTIFICATE OF APPEALABILITY AND LEAVE
TO APPEAL IN FORMA PAUPERIS
Honorable Thomas L. Ludington, Judge
Thomas Walls, a Michigan State Prisoner currently held at the
Chippewa Correctional Facility, was convicted in Genesee
County Circuit Court of assault with intent to murder in
violation of Mich. Comp. Laws § 750.83; and possession
of a firearm during the commission of a felony in violation
of Mich. Comp. Laws § 750.227b. On August 29, 2016
Petitioner filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, asserting that he is being
held in violation of his constitutional rights. See
ECF No. 1. That same day, Petitioner filed a motion for a
stay of the proceedings in order to raise unexhausted claims
in the state courts. See ECF No. 2. For the reasons
stated below, Petitioner's motion for a stay will be
denied, and his petition will be dismissed without prejudice.
A certificate of appealability will also be denied.
a jury trial in Genesee County Circuit Court, Petitioner was
convicted and sentenced to 210 to 500 months'
imprisonment for assault with intent to murder and 2
years' imprisonment for felony-firearm. On January 21,
2014 the Michigan Court of Appeals affirmed his convictions
on appeal. People v. Walls, No. 307647, 2014 WL
238597 (Mich. Ct. App. Jan. 21, 2014). Petitioner sought
leave to appeal in the Michigan Supreme Court. The Michigan
Supreme Court held the application in abeyance pending its
decision in People v. Lockridge. People v.
Walls, No. 148896 (Mich. Sept. 29, 2014). After the
Michigan Supreme Court issued its decision in People v.
Lockridge, 498 Mich. 358 (2015), the Court, in lieu of
granting leave to appeal, remanded Petitioner's case to
the trial court “to determine whether the court would
have imposed a materially different sentence under the
sentencing procedure described in Lockridge.”
People v. Walls, 498 Mich. 901 (Mich. Oct. 28,
2015). As a result Petitioner has been appointed counsel and
is scheduled to be resentenced on November 28,
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. §2254 must first exhaust all state remedies.
See O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (“state prisoners must give the state courts one
full fair opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process”). To satisfy this
requirement, the claims must be “fairly
presented” to the state courts, meaning that the
prisoner must have asserted both the factual and legal bases
for the claims in the state courts. See McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The claims
must also be presented to the state courts as federal
constitutional issues. See Koontz v. Glossa, 731
F.2d 365, 368 (6th Cir. 1984). While the exhaustion
requirement is not jurisdictional, a “strong
presumption” exists that a petitioner must exhaust
available state remedies before seeking federal habeas
review. See Granberry v. Greer, 481 U.S. 129, 131,
134-35 (1987). The burden is on the petitioner to prove
exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir.
case, Petitioner represents that he filed a motion for relief
from judgment in the state trial court raising the same
issues raised in his habeas petition at the same time that he
filed his current habeas petition. Federal habeas law
provides that a habeas petitioner is only entitled to relief
if he can show that the state court adjudication of his
claims resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court of the United
States. See 28 U.S.C. § 2254(d). For this
reason, the state courts must first be given a fair
opportunity to rule upon Petitioner's habeas claims
before he can present those claims to this Court.
because the state court proceedings may result in
Petitioner's resentencing, the federal questions
presented may be mooted. See Humphrey v. Scutt, No.
08-CV-14605, 2008 WL 4858091, *1 (E.D. Mich. Nov. 5, 2008)
(citing Sherwood v. Tomkins, 716 F.2d 632, 634 (9th
Cir.1983), and Woods v. Gilmore, 26 F.Supp.2d 1093,
1095 (C.D. Ill. 1998)). Non-prejudicial dismissal of the
petition is warranted under such circumstances.
federal district court has discretion to stay a habeas
petition to allow a petitioner to present unexhausted claims
to the state courts in the first instance and then return to
federal court on a perfected petition. See Rhines v.
Weber, 544 U.S. 269, 276 (2005). However, stay and
abeyance is available only in “limited
circumstances” such as when the one-year statute of
limitations applicable to federal habeas actions poses a
concern, and when the petitioner demonstrates “good
cause” for the failure to exhaust state court remedies
before proceeding in federal court and the unexhausted claims
are not “plainly meritless.” Id. at 277.
has not shown the need for a stay. Although he may be
concerned that the one-year statute of limitations applicable
to federal habeas actions established by 28 U.S.C. §
2244(d) poses a problem, it does not. The one-year period
does not begin until 90 days after the conclusion of direct
appeal. Gonzalez v. Thaler, __U.S.__, 132 S.Ct. 641,
653 (2012) (stating that a conviction becomes final when the
time for filing a certiorari petition expires). The Michigan
Supreme Court denied leave to appeal on October 28, 2015, and
the time for seeking a writ of certiorari with the United
States Supreme Court expired 90 days later - on January 27,
2016. Petitioner filed his federal habeas petition on August
15, 2016. Thus, approximately five months of the one-year
period remained when he filed the petition. While the time in
which this case has been pending in federal court is not
statutorily tolled, such time may be equitably tolled.
See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (a
federal habeas petition is not an “application for
State post-conviction or other collateral review”
within the meaning of 28 U.S.C. § 2244(d)(2) so as to
statutorily toll the limitations period); See, e.g.,
Johnson v. Warren, 344 F.Supp.2d 1081, 1088-89 (E.D.
Mich. 2004). The limitations period will also be tolled
during the time in which any properly filed post-conviction
or collateral actions are pending in the state courts.
See 28 U.S.C. § 2244(d)(2); Carey v.
Saffold, 536 U.S. 214, 219-221 (2002). Petitioner has
ample time to fully exhaust his state court remedies and
return to federal court should he wish to do so.
even assuming that Petitioner has not engaged in
“intentionally dilatory tactics” and has shown
“good cause” for failing to fully exhaust issues
in the state courts before seeking federal habeas relief, he
has not shown the need for a stay. Finally, his unexhausted
claims concern matters of federal law which do not appear to
be “plainly meritless.” The state courts should
be given a fair opportunity to rule upon those claims. Given
the foregoing circumstances, a stay is not warranted, and a
non-prejudicial dismissal of the habeas petition is
Petitioner may appeal the Court's decision, a certificate
of appealability must issue. See 28 U.S.C. §
2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When a court
denies relief on procedural grounds without addressing the
merits, a certificate of appealability should issue if it is
shown that jurists of reason would find it debatable whether
the petitioner states a valid claim of the denial of a