United States District Court, E.D. Michigan, Southern Division
ORDER DENYING MOTION TO STAY PROCEEDINGS AND HOLD
HABEAS PETITION IN ABEYANCE
GEORGE CARAM STEEH, Judge
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Joseph Lee Gilmore
(“petitioner”) asserts that he is being held in
violation of his constitutional rights. The petitioner was
convicted of two counts of armed robbery, Mich. Comp. Laws
§ 750.529, first-degree home invasion, Mich. Comp. Laws
§ 750.110a(2), three counts of unlawful imprisonment,
Mich. Comp. Laws § 750.349b, felon in possession of a
firearm, Mich. Comp. Laws § 750.224f, and possession of
a firearm during the commission of a felony (felony firearm),
second offense, Mich. Comp. Laws § 750.227b, following a
jury trial in the Wayne County Circuit Court. He was
sentenced, as a fourth habitual offender, Mich. Comp. Laws
§ 769.12, to concurrent terms of 22 ½ years to 62
½ years imprisonment on the armed robbery convictions,
a concurrent term of 9 years 2 months to 20 years
imprisonment on the home invasion conviction, concurrent
terms of 5 years 10 months to 15 years imprisonment on the
unlawful imprisonment convictions, a concurrent term of 2
½ to 5 years imprisonment on the felon in possession
conviction, and a consecutive term of five years imprisonment
on the felony firearm conviction in 2013. In his current
petition, he raises claims concerning the denial of an
adjournment request, the effectiveness of trial and appellate
counsel, and the conduct of the prosecutor. The respondent
has not yet filed an answer to the petition, but that answer
is due on July 10, 2017. The matter is before the Court on
the petitioner's motion to stay the proceedings and hold
his habeas petition in abeyance so that he may return to the
state courts and exhaust additional issues concerning the
effectiveness of trial and appellate counsel. For the reasons
that follow, the Court denies the petitioner's motion.
his convictions and sentencing, the petitioner filed an
appeal of right with the Michigan Court of Appeals raising
several claims, including claims contained in his current
petition. The Michigan Court of Appeals affirmed his
convictions and sentences. People v. Gilmore, No.
318592, 2015 WL 558292 (Mich. Ct. App. Feb. 10, 2015)
(unpublished). The petitioner filed an application for leave
to appeal with the Michigan Supreme Court, which was denied.
People v. Gilmore, 498 Mich. 957, 872 N.W.2d 495
(Dec. 23, 2015). The petitioner submitted his federal habeas
petition to prison officials for mailing on December 21,
2016. The instant motion was mailed on February 17, 2017.
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. §2254 must first exhaust all state remedies.
See O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (“state 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. 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). 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). 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.
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). While the exhaustion requirement is not
jurisdictional, a “strong presumption” exists
that a petitioner must exhaust all available state remedies
before seeking federal habeas review. Granberry v.
Greer, 481 U.S. 129, 131, 134-35 (1987). The burden is
on the petitioner to prove exhaustion. Rust, 17 F.3d
federal district court has discretion to stay a mixed habeas
petition, containing both exhausted and unexhausted claims,
to allow a petitioner to present unexhausted claims to the
state courts 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 poses a concern, and when 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.
petitioner has not shown the need for a stay. His current
habeas claims appear to be exhausted and he has not shown
that the one-year statute of limitations applicable to
federal habeas actions, see 28 U.S.C. §
2244(d), will preclude review. The one-year limitations
period does not begin to run until 90 days after the
conclusion of direct appeal, see Jimenez v.
Quarterman, 555 U.S. 113, 120 (2009) (stating that a
conviction becomes final when “the time for filing a
certiorari petition expires”); Lawrence v.
Florida, 549 U.S. 327, 333 (2007). The Michigan Supreme
Court denied leave to appeal on December 23, 2015 and the
time for seeking a writ of certiorari with the United States
Supreme Court expired on March 22, 2016. The petitioner
submitted his federal habeas petition to prison officials for
mailing on December 21, 2016. Thus, only nine months of the
one-year period had expired when the petitioner instituted
this action. While the time in which this case has been
pending in federal court is not statutorily tolled, see
Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (a federal
habeas petition is not an “application for State
post-conviction or other collateral review” within the
meaning of 28 U.S.C. § 2244(d)(2) so as to statutorily
toll the limitations period), such time is equitably tolled.
See, e.g., Johnson v. Warren, 344 F.Supp.2d
1081, 1088-89 (E.D. Mich. 2004). The limitations period will
also be tolled during the time in which any properly filed
post-conviction or collateral actions are pending in the
state courts. See 28 U.S.C. § 2244(d)(2);
Carey v. Saffold, 536 U.S. 214, 219-221 (2002).
Given that three months of the one-year period remains, the
petitioner has sufficient time to exhaust additional issues
in the state courts and return to federal court should he
wish to do so.
while there is no evidence of intentional delay and the
petitioner's new claims do not appear to be plainly
meritless, the petitioner has not shown good cause for
failing to exhaust his additional issues in the state courts
before seeking federal habeas review. The fact that appellate
counsel did not raise the issues on direct appeal, while
perhaps establishing cause for that procedural default, does
not excuse the petitioner's failure to exhaust all of his
issues on state collateral review before proceeding in
federal court. The lack of a legal education, ignorance of
the law, and/or the lack of legal assistance do not
constitute good cause for the failure to exhaust state
remedies. See Allen v. Yukins, 366 F.3d 396, 403
(6th Cir. 2004); Kint v. Burt, No. 2:05-CV-74822-DT,
2007 WL 763174, *2 n.1 (E.D. Mich. March 9, 2007). Given such
circumstances, a stay is unwarranted.
the Court DENIES the petitioner's motion to stay the
proceedings and hold his habeas petition in abeyance. Should
the petitioner wish to have the Court dismiss the present
petition, which contains exhausted claims, so that he may
pursue additional issues in the state courts, he may move for
a non-prejudicial dismissal of his habeas petition within 30
days of the filing date ...