United States District Court, E.D. Michigan, Southern Division
ORDER DISMISSING WITHOUT PREJUDICE PETITION FOR A
WRIT OF HABEAS CORPUS , DENYING MOTION TO STRIKE AND/OR
STAY PROCEEDINGS , DENYING MOTION TO AMEND OR CORRECT
PETITION , AND DENYING CERTIFICATE OF
E. LEVY United States District Judge
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.
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.)
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.
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).
August 5, 2016, Petitioner filed a motion for post-conviction
relief from judgment with the Wayne County Circuit Court. The
motion is currently pending.
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.)
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.
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.
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
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
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 ...