United States District Court, E.D. Michigan, Southern Division
NIKKO C. FOREMAN, Petitioner,
CATHERINE BAUMAN, Respondent.
ORDER GRANTING PETITIONER'S MOTION TO HOLD HABEAS
PROCEEDING IN ABEYANCE AND ADMINISTRATIVELY CLOSING
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.
a habeas case under 28 U.S.C. § 2254. Petitioner Nikko
C. Foreman is a state inmate at the Alger Correctional
Facility in Munising, Michigan. He challenges his convictions
for first-degree premeditated murder and possession of a
firearm during the commission of a felony. Now before the
Court is Petitioner's Motion to Hold Habeas Proceeding in
Abeyance. The Court grants the motion.
a jury trial in Wayne County Circuit Court, Petitioner was
convicted of first-degree premeditated murder and felony
firearm. On April 12, 2013, he was sentenced to life
imprisonment for the murder conviction and two years'
imprisonment for the felony-firearm conviction.
filed an appeal of right in the Michigan Court of Appeals,
claiming that insufficient evidence supported his conviction,
that the verdict was against the great weight of the evidence
and that the prosecutor engaged in misconduct. The Michigan
Court of Appeals affirmed Petitioner's convictions.
People v. Foreman, No. 315947, 2014 WL 5165100
(Mich. Ct. App. Oct. 14, 2014). Petitioner filed an
application for leave to appeal in the Michigan Supreme
Court, which denied leave to appeal. People v.
Foreman, 497 Mich. 1028 (Mich. 2015).
filed the pending habeas petition on July 19, 2016. He raises
the same claims raised on direct review in state court.
Petitioner also filed a motion to stay this proceeding so he
may return to state court and raise additional, unexhausted
claims in state court.
prisoners must exhaust available state remedies for each of
the claims presented in a habeas petition before seeking a
federal writ of habeas corpus. 28 U.S.C. § 2254(b)(1).
Petitioner seeks a stay because, although the claims raised
in the petition are exhausted, he would like to raise
additional, unexhausted claims in state court. He states he
intends to raise these claims in state court: prosecutorial
misconduct, ineffective assistance of trial and appellate
counsel, custodial statement should have been suppressed, and
trial court abuse of discretion.
federal court may stay a federal habeas petition and hold
further proceedings in abeyance pending resolution of state
court post-conviction proceedings if outright dismissal of a
habeas petition would jeopardize the timeliness of a future
petition, there is good cause for the petitioner's
failure to exhaust those claims, the unexhausted claims are
not “plainly meritless, ” and “there is no
indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Rhines v. Weber,
544 U.S. 269, 278 (2005).
Court finds that a stay is warranted in this case. First, the
outright dismissal of the petition, even without prejudice,
may preclude future consideration of Petitioner's claims
in this court due to the expiration of the statute of
limitations. See 28 U.S.C. § 2241(d)(1).
Staying a habeas corpus proceeding is appropriate where a
second, exhausted habeas petition may be time barred by the
AEDPA's statute of limitations. See Hargrove v.
Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002).
Petitioner asserts ineffective assistance of appellate
counsel as cause for his failure to exhaust these claims. An
appellate attorney cannot be expected to raise his own
ineffective assistance on appeal. Combs v. Coyle,
205 F.3d 269, 276 (6th Cir. 2000). Therefore, the Court finds
Petitioner has satisfied the good cause standard.
Petitioner's unexhausted claims are not plainly meritless
because they allege a violation of Petitioner's
constitutional rights that could serve as grounds for
granting a writ of habeas corpus if supported by sufficient
facts. Finally, the Court finds no indication that Petitioner
is engaging in intentionally dilatory litigation tactics.
district court determines that a stay is appropriate pending
resolution 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 Petitioner
does not delay in exhausting his state court remedies, the
Court imposes time limits within which he must proceed.
See Palmer v. Carlton, 276 F.3d 777, 781 (6th
Cir.2002). Petitioner must present his claims in state court
within sixty days from the date of this Order. See
Id. Petitioner must also ask this Court to lift the stay
within sixty days of completing state court review. See
Id. “If the ...