United States District Court, E.D. Michigan, Southern Division
Jamarr D. Miliner, Petitioner,
Paul Klee, Respondent.
K. Majzoub, Mag. Judge
ORDER GRANTING MOTION TO STAY AND HOLD IN
ABEYANCE PETITION FOR WRIT OF HABEAS CORPUS  AND
ADMINISTRATIVELY CLOSING THE CASE
E. LEVY, United States District Judge
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Jamarr D. Miliner
(“Petitioner”) was convicted after a jury trial
in the Wayne Circuit Court of second-degree murder. He was
sentenced to a term of thirty-five to seventy years'
imprisonment. Petitioner's habeas application raises four
claims: (1) Petitioner is entitled to be resentenced; (2) the
prosecution presented insufficient evidence to sustain the
conviction; (3) Petitioner's sentence was based on
inaccurate information; and (4) Petitioner's trial
counsel was ineffective for failing to request an involuntary
manslaughter jury instruction.
the Court is Petitioner's motion to stay the petition
(Dkt. 6) so that he can exhaust his state court remedies with
respect to his second, third, and fourth claims.
indicates that following his conviction and sentence he filed
a direct appeal in the Michigan Court of Appeals. His
appellate brief raised what is now his first claim. The
Michigan Court of Appeals affirmed Petitioner's
conviction and sentence in an unpublished opinion. People
v. Milner, No. 315810, 2014 Mich.App. LEXIS 1554, at
*1-12 (Mich. Ct. App. Aug. 21, 2014) (per curiam).
Petitioner subsequently filed an application for leave to
appeal in the Michigan Supreme Court. The Michigan Supreme
Court denied the application on March 3, 2015. People v.
Milner, 497 Mich. 973 (2015). The one-year statute of
limitations for filing his federal habeas petition started
running ninety days later, on June 1, 2015. See Jimenez
v. Quarterman, 555 U.S. 113, 120 (2009) (a conviction
becomes final when “the time for filing a certiorari
states that on May 27, 2016, mere days before the statute of
limitations expired, he filed a motion for relief from
judgment in the trial court raising what now forms his
second, third, and fourth habeas claims. The filing of the
state post-conviction review proceeding tolls the limitations
period. See 28 U.S.C. § 2244(d)(2). The trial
court denied the motion on July 12, 2016. Petitioner states
that he appealed this decision in the Michigan Court of
Appeals and that the appeal is still pending. Petitioner
requests that his habeas petition be stayed and held in
abeyance pending exhaustion of his state court remedies with
respect to the claims raised in his post-conviction review
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. §2254 must first exhaust state remedies.
See O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (“[S]tate 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.”); Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994). 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);
see also Williams v. Anderson, 460 F.3d 789, 806
(6th Cir. 2006) (citing McMeans, 228 F.3d at 681). A
Michigan prisoner must properly present each issue he seeks
to raise in a federal habeas proceeding to both the Michigan
Court of Appeals and the Michigan Supreme Court to satisfy
the exhaustion requirement. See Welch v. Burke, 49
F.Supp.2d 992, 998 (E.D. Mich. 1999); see also Hafley v.
Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
federal district court has discretion to stay a petition
raising unexhausted claims to allow a petitioner to present
those claims to the state courts and then return to federal
court on a perfected petition. See 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 poses a concern, the
petitioner demonstrates “good cause” for the
failure to exhaust state remedies before proceeding in
federal court, the petitioner has not engaged in
intentionally dilatory litigation tactics, and the
unexhausted claims are not “plainly meritless.”
Id. at 277.
unexhausted claims do not appear to be plainly meritless, and
he does not appear to be engaged in dilatory litigation
tactics. Petitioner notes that he filed his motion for relief
from judgment with only a few days remaining on the one-year
statute of limitations. He asserts that the delay in
preparing and filing his motion for relief from judgment was
the result of his lack of legal knowledge coupled with his
limited access to the prison law library for only four hours
per week. (See Dkt. 1.) Dismissal of this case while
Petitioner exhausts his claims could therefore result in a
subsequent petition being barred by the one-year statute of.
Thus, the Court exercises its discretion to stay this case
while Petitioner exhausts his state remedies.
district court determines that a stay is appropriate pending
exhaustion of state court remedies, the district court
“should place reasonable time limits on a
petitioner's trip to state court and back.”
Rhines, 544 U.S. at 278. To ensure that there are no
delays by Petitioner in exhausting his state court remedies,
this Court will impose a time limit within which Petitioner
must proceed with his state court post-conviction
proceedings. See Palmer v. Carlton, 276 F.3d 777,
781 (6th Cir. 2002). Thus, the order staying the case is
conditioned upon Petitioner diligently pursuing relief in the
state courts by pursuing timely appeals of his motion for
relief from judgment and then returning to federal court
within sixty days of completing the exhaustion of his state
post-conviction remedies. See Hargrove v. Brigano,
300 F.3d 717, 718 (6th Cir. 2002).
reasons set forth above, Petitioner's motion to stay
(Dkt. 6) is GRANTED. The petition for writ of habeas corpus
shall be held in abeyance pending completion of
Petitioner's state post-conviction review proceeding.
This tolling is conditioned upon Petitioner timely appealing
the denial of his motion for relief from judgment through the
Michigan appellate courts and then re-filing his habeas
petition-using the case number already assigned to this
case-within sixty days after the conclusion of the state
court post-conviction proceeding.
avoid administrative difficulties, the Clerk of Court shall
CLOSE this case for statistical purposes only. Nothing in
this order or in the related docket entry shall be considered
a dismissal or disposition of this matter. See Sitto v.
Bock, 207 F.Supp.2d 668, 677 (E.D. Mich. 2002).
receipt of a motion to reinstate the habeas petition
following exhaustion of state remedies, the Court may ...