United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PETITIONER'S MOTION TO
STAY, STAYING PROCEEDINGS, AND ADMINISTRATIVELY CLOSING
GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE.
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Cedric Simpson (“Petitioner”)
was convicted of surveilling an unclothed person and
defrauding an innkeeper in the Macomb County Circuit Court
and was sentenced as a third habitual offender to concurrent
terms of five to 10 years imprisonment and 90 days in jail in
2013. In his petition, he raises a claim concerning the
conduct of the prosecutor in eliciting a police officer's
opinion testimony. Respondent has not yet filed an answer to
the petition or the state court record. Those materials are
due in February, 2017. This matter is now before the Court on
Petitioner's motion to stay the proceedings and hold his
habeas petition in abeyance so that he can return to state
court to exhaust remedies on additional claims concerning the
pre-trial identification procedures and his identification at
trial, the admission of his mugshot, and the validity of his
doctrine of exhaustion of state remedies requires state
prisoners to “fairly present” their claims as
federal constitutional issues in the state courts before
raising those claims in a federal habeas petition. 28 U.S.C.
§ 2254(b)(1)(A) and (c); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999); McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000); Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994). Federal 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. 28 U.S.C. § 2254(d). The state courts must be
given an opportunity to rule upon all of a petitioner's
claims before he can present those claims on habeas review.
Otherwise, a federal court is unable to apply the standard
found at 28 U.S.C. § 2254.
exhaustion requirement is met if a prisoner invokes one
complete round of the state's established appellate
review process. O'Sullivan, 526 U.S. at 845. To
satisfy the exhaustion requirement, the claims must be
“fairly presented” to the state courts, meaning
that the petitioner must have asserted both the factual and
legal bases for the claims in the state courts.
McMeans, 228 F.3d at 681; see also Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing
McMeans). The claims must also be presented to the
state courts as federal constitutional issues. Koontz v.
Glossa, 731 F.2d 365, 368 (6th Cir. 1984). For a
Michigan prisoner, each issue must be presented to both the
Michigan Court of Appeals and the Michigan Supreme Court.
Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.
1990); Welch v. Burke, 49 F.Supp.2d 992, 998 (E.D.
Mich. 1999). The burden is on the petitioner to prove
exhaustion. Rust, 17 F.3d at 160.
Michigan Rules of Court provide a process through which
Petitioner may raise his unexhausted claims. In fact,
Petitioner states that he intends to file a motion for relief
from judgment in the state trial court pursuant to Michigan
Court Rule 6.500 et seq. He may then appeal the
trial court's decision to the state appellate courts as
necessary. The unexhausted claims should first be addressed
to, and considered by, the Michigan courts.
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. Rhines v.
Weber, 544 U.S. 269, 276 (2005). 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, the unexhausted claims are not “plainly
meritless, ” and the petitioner has not engaged in
intentionally dilatory tactics. Id. at 277.
case, Petitioner shows the need for a stay. He wishes to
pursue new claims which have not been presented to the state
courts. The one-year limitations period applicable to federal
habeas actions, 28 U.S.C. § 2244(d)(1), could pose a
problem if the court were to dismiss the petition to allow
for further exhaustion of state remedies. Additionally,
Petitioner seeks to present new issues and alleges that
appellate counsel was ineffective for failing to previously
present them to the state courts, which may provide good
cause. Lastly, at least some of the unexhausted claims do not
appear to be plainly meritless and there is no evidence of
intentional delay. Therefore, the Court shall stay the
proceedings and hold the exhausted claim in the current
petition in abeyance pending Petitioner's pursuit of
state court remedies as to any unexhausted claims. The Court
make no determination as to the timeliness of any claims or
the procedural or substantive merits of any claims.
the Court GRANTS Petitioner's motion to stay the
proceedings and hold the habeas petition in abeyance. These
proceedings are stayed. The stay is conditioned on Petitioner
presenting the unexhausted claims to the state courts within
60 days of the date of this order by filing a motion for
relief from judgment with the trial court. See Hill v.
Anderson, 300 F.3d 679, 683 (6th Cir. 2002) (discussing
procedure). The stay is further conditioned on
Petitioner's return to this Court with a motion to reopen
and amend the petition, using the same caption and case
number, within 60 days of fully exhausting state remedies.
See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.
2002) (adopting approach taken in Zarvela v. Artuz,
254 F.3d ...