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Evans v. Trierweiler

United States District Court, E.D. Michigan, Southern Division

January 13, 2017

Brian Matthew Evans, Petitioner,
v.
Tony Trierweiler, Respondent.

          ORDER DISMISSING WITHOUT PREJUDICE PETITION FOR A WRIT OF HABEAS CORPUS [1], DENYING MOTION TO STRIKE AND/OR STAY PROCEEDINGS [4], DENYING MOTION TO AMEND OR CORRECT PETITION [7], AND DENYING CERTIFICATE OF APPEALABILITY

          JUDITH E. LEVY United States District Judge

         Brian Matthew Evans (“Petitioner”), confined at the Bellamy Creek Correctional Facility in Ionia, Michigan, filed a letter with the Court on or about August 12, 2016, which was docketed as a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (Dkt. 1.) Following a jury trial in the Wayne County Circuit Court, Petitioner was convicted of first-degree murder, Mich. Comp. Laws § 750.316; armed robbery, Mich. Comp. Laws § 750.529; torture, Mich. Comp.Laws § 750.85; felon in possession of a firearm, Mich. Comp. Laws § 750.224f; and possession of a firearm in the commission of a felony, Mich. Comp. Laws § 750.227b.

         Petitioner has also filed a motion to strike and/or a motion to stay the proceedings and hold the petition in abeyance to permit him to exhaust claims currently pending before the state trial court. (Dkt. 4.) For the same reason, Petitioner has also filed a motion to amend or correct his petition for a writ of habeas corpus. (Dkt. 7.)

         For the reasons set forth below, the Court denies the motion to strike and/or stay the proceedings and hold the petition in abeyance, denies the motion to amend or correct the petition, and dismisses without prejudice the letter docketed as a petition so Petitioner may exhaust all of his claims.

         I. BACKGROUND

         Petitioner was convicted on the five counts listed above following a jury trial in the Wayne County Circuit Court. Petitioner appealed his conviction with the state courts, and direct review of his claims concluded on November 13, 2015, when the Michigan Supreme Court denied Petitioner leave to appeal. People v. Evans, 498 Mich. 913 (2015).

         On August 5, 2016, Petitioner filed a motion for post-conviction relief from judgment with the Wayne County Circuit Court. The motion is currently pending.

         On August 12, 2016, Petitioner filed a letter with the Court, stating he had a motion for post-conviction relief pending with the state trial court, but was “aware of the Federal Habeas Corpus timeline requirement” and requested the Court toll the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act (AEDPA) so he could file a habeas petition after the state court proceedings concluded. (Dkt. 1 at 2.)

         On September 6, 2016, Petitioner filed a motion to strike and/or stay the proceedings and hold the petition in abeyance. (Dkt. 4.) In this motion, Petitioner states he “has yet to file any Petition for Writ of Habeas Corpus Pursuant to USCS § 2254 within this Honorable Court, ” and insists “he has NOT made any attempts to file a writ of habeas corpus in this Federal Court.” (Id. at 1 (emphasis in original).) Petitioner nonetheless requests the Court hold the petition in abeyance.

         On November 21, 2016, Petitioner filed a motion to amend or correct his original filing, explaining his motion for post-conviction relief was still pending before the trial court and many of the claims he would like to bring in a habeas petition are not yet exhausted. (Dkt. 7.) In this latter motion, Petitioner has listed the unexhausted claims, but not explained the facts underlying each claim.

         II. DISCUSSION

         Upon the filing of a habeas corpus petition, a court must promptly examine the petition to determine “if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief.” Rule 4, Rules Governing Section 2254 Cases. If the court determines the petitioner is not entitled to relief, the court shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face.”).

         Because Petitioner has requested the Court stay proceedings and hold his petition in abeyance, the Court will consider whether Petitioner's filings are an attempt to file a “protective” petition that may be held in abeyance pending the exhaustion of state post-conviction remedies. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (citing Rhines v. Weber, 544 U.S. 269 (2005)).

         Rule 2(c) of the Rules Governing Section 2254 Cases states that a habeas petition must specify all grounds for relief and state the facts supporting each ground. Here, Petitioner's initial filing does not specify the grounds or facts for relief. Thus, this filing cannot be construed as a petition or a “protective” petition, and there is nothing to hold in abeyance. See, e.g., Hall v. Trierweiler, Case No. 16-cv-10126, 2016 WL 3611887, at *1-2 (E.D. Mich. July 6, 2016) (declining to construe Motion to Hold Habeas Petition in Abeyance as a ...


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