United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION TO
HOLD HABEAS CORPUS PETITION IN ABEYANCE AND DISMISSING HABEAS
CORPUS PETITION WITHOUT PREJUDICE
HONORABLE PAUL D. BORMAN JUDGE
state prisoner Michael Lamar Patrick filed a petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
asserting he is being held in violation of his constitutional
rights. Petitioner is incarcerated pursuant to convictions
for two counts of armed robbery. The matter is currently
before the Court on Petitioner's motion to hold these
proceedings in abeyance to allow him to exhaust his claims in
the state courts. The Court denies Petitioner's motion
and instead dismisses the habeas petition without prejudice.
The Court also denies a certificate of appealability.
was convicted by a jury in Oakland County Circuit Court of
two counts of armed robbery. On February 5, 2015, he was
sentenced as a fourth habitual offender to twenty-five to
forty years' imprisonment for each conviction.
filed an appeal of right with the Michigan Court of Appeals
raising a claim that insufficient evidence supported his
convictions. The Michigan Court of Appeals affirmed
Petitioner's convictions. People v. Patrick, No.
326351, 2016 WL 3030877 (Mich. Ct. App. May 26, 2016).
Petitioner filed an application for leave to appeal in the
Michigan Supreme Court, raising the same claim raised in the
Michigan Court of Appeals. The Michigan Supreme Court denied
leave to appeal. People v. Patrick, 888 Mich. 115
(Mich. Jan. 5, 2017).
then filed the pending habeas corpus petition. At the same
time he filed the habeas petition, Petitioner filed a Motion
to Hold Habeas Corpus Petition in Abeyance.
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) (“[S]tate prisoners must give the state courts
one full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process”). To exhaust state court
remedies, a claim must be fairly presented “to every
level of the state courts in one full round.”
Ambrose v. Romanowski, 621 F.App'x 808, 814 (6th
Cir. 2015). See also Wagner v. Smith, 581 F.3d 410,
418 (6th Cir. 2009) (“For a claim to be reviewable at
the federal level, each claim must be presented at every
stage of the state appellate process.”). A petitioner
bears the burden of showing that state court remedies have
been exhausted. Nali v. Phillips, 681 F.3d 837, 852
(6th Cir. 2012).
case, the petition raises only unexhausted claims concerning
Petitioner's sentence and the alleged ineffective
assistance of counsel. Federal habeas law provides that a
habeas petitioner is only entitled to relief if he can show
that the state court adjudication of his claims resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established federal law as determined
by the Supreme Court of the United States. See 28
U.S.C. § 2254(d). The state courts must first be given a
fair opportunity to rule upon Petitioner's claims before
he can present those claims to this Court. Otherwise, the
Court cannot apply the habeas standard of 28 U.S.C. §
2254. Furthermore, the state court proceedings may provide
Petitioner the relief he seeks, thereby mooting the federal
questions presented. See Humphrey v. Scutt, No.
08-CV-14605, 2008 WL 4858091, *1 (E.D. Mich. Nov. 5, 2008),
citing Sherwood v. Tomkins, 716 F.2d 632, 634 (9th
Cir.1983). Non-prejudicial dismissal of the petition is
warranted under such circumstances.
federal district court has discretion to stay a habeas
petition to allow a petitioner to present unexhausted claims
to the state courts in the first instance and then return to
federal court on a perfected petition. Rhines v.
Weber, 544 U.S. 269, 276 (2005). A stay is only
appropriate when the district court determines that the
statute of limitations poses a concern, there was good cause
for the petitioner's failure to exhaust his claims first
in state court, the claims are not “plainly
meritless”, and the petitioner did not engage in
intentionally dilatory litigation tactics. Id. at
has not shown the need for a stay. Although he may be
concerned that the one-year statute of limitations applicable
to federal habeas actions, see 28 U.S.C. §
2244(d), poses a problem, it does not. The one-year period
does not begin to run the conviction becomes final, 90 days
after the conclusion of direct appeal. Gonzalez v.
Thaler, 565 U.S. 134, 149 (2012) (stating that a
conviction becomes final when the time for filing a
certiorari petition expires). Petitioner's state court
conviction became final on April 5, 2017 pursuant to 28
U.S.C. § 2244(d)(1)(A). Petitioner filed his habeas
corpus petition on March 2, 2017, before the limitations
period commenced. Further, the limitations period will 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).
Petitioner has ample time to fully exhaust his state court
remedies and return to federal court should he wish to do so.
A stay is unwarranted and a non-prejudicial dismissal of the
habeas petition is appropriate.
the Court DENIES Petitioner's Motion to Hold Habeas
Corpus Petition In Abeyance (ECF No. 2) and DISMISSES WITHOUT
PREJUDICE the ...