United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER GRANTING PETITIONER'S MOTION
FOR A STAY AND DIRECTING THE CLERK OF COURT TO CLOSE THE
L. LUDINGTON United States District Judge
Joseph Jordan, a state prisoner at the Chippewa Correctional
Facility in Kincheloe, Michigan, recently filed a pro
se petition for the writ of habeas corpus under 28
U.S.C. § 2254. ECF No. 1. Simultaneously, he filed a
motion to hold his petition in abeyance. ECF No. 3. The
petition challenges Petitioner's Wayne County, Michigan
conviction and sentence of thirteen to thirty years for armed
robbery, Mich. Comp. Laws § 750.529. He raises two
sentencing claims in his habeas petition and also argues that
the evidence at trial was insufficient to sustain his
conviction. In his motion to stay proceedings, Petitioner
alleges that the state trial court has not issued a final
decision on his sentencing claim. For the reasons given
below, the Court will grant Petitioner's motion for a
stay and hold the habeas petition in abeyance.
a jury trial in Wayne County Circuit Court, Petitioner was
convicted of armed robbery. On February 6, 2014, the trial
court sentenced Petitioner to prison for thirteen to thirty
years. In an appeal to the Michigan Court of Appeals,
Petitioner challenged the sufficiency of the evidence at
trial and the trial court's scoring of offense variable 4
of the Michigan sentencing guidelines. The Michigan Court of
Appeals affirmed Petitioner's conviction and sentence.
See People v. Jordan, No. 320555, 2015 WL 3766797
(Mich. Ct. App. June 16, 2015).
alleges that he raised the same issues in the Michigan
Supreme Court. On March 8, 2016, the Michigan Supreme Court
reversed the trial court's judgment in part and remanded
the case to the trial court to determine whether it would
have imposed a materially different sentence under the
sentencing procedure described in People v.
Lockridge, 870 N.W.2d 502 (Mich. 2015). The Court denied
leave to appeal in all other respects because it was not
persuaded to review the remaining issues. See People v.
Jordan, 875 N.W.2d 199 (Mich. 2016).
March 6, 2017, Petitioner filed his habeas petition. He
raises the two claims that he presented to the Michigan Court
of Appeals on direct appeal and also argues that his Sixth
and Fourteenth Amendment rights were violated by judicial
fact-finding, in violation of Alleyne v. United
States, 133 S.Ct. 2151 (2013). In his motion to stay
proceedings, Petitioner asks the Court to temporarily hold
his case in abeyance because the state trial court, on
remand, has not yet made a determination about his sentence,
as ordered by the Michigan Supreme Court. Petitioner states
that he filed his habeas petition before exhausting state
remedies to avoid having his federal petition barred by the
statute of limitations.
doctrine of exhaustion of state remedies requires state
prisoners to present all their claims to the state courts
before raising their claims in a federal habeas corpus
petition. See 28 U.S.C. § 2254(b)(1);
O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). This requirement is satisfied if the prisoner
“invok[es] one complete round of the State's
established appellate review process, ” including a
petition for discretionary review in the state supreme court,
“when that review is part of the ordinary appellate
review procedure in the State.”
O'Sullivan, 526 U.S. at 845, 847. A federal
district court ordinarily must dismiss a “mixed”
petition containing both exhausted and unexhausted claims,
“leaving the prisoner with the choice of returning to
state court to exhaust his claims or of amending or
resubmitting the habeas petition to present only exhausted
claims to the district court.” Rose v. Lundy,
455 U.S. 509, 510 (1982). However, as explained in Rhines
v. Weber, 544 U.S. 269 (2005),
[t]he enactment of [the Antiterrorism and Effective Death
Penalty Act (AEDPA)] ¶ 1996 dramatically altered the
landscape for federal habeas corpus petitions. AEDPA
preserved Lundy's total exhaustion requirement, see 28
U.S.C. § 2254(b)(1)(A) (“An application for a writ
of habeas corpus . . . shall not be granted unless it appears
that . . . the applicant has exhausted the remedies available
in the courts of the State”), but it also imposed a
1-year statute of limitations on the filing of federal
petitions, § 2244(d) . . . .
As a result of the interplay between AEDPA's 1-year
statute of limitations and Lundy's dismissal
requirement, petitioners who come to federal court with
“mixed” petitions run the risk of forever losing
their opportunity for any federal review of their unexhausted
claims. If a petitioner files a timely but mixed petition in
federal district court, and the district court dismisses it
under Lundy after the limitations period has
expired, this will likely mean the termination of any federal
Id. at 274-75.
light of this problem, some district courts have adopted a
“stay-and-abeyance” approach. Id. at
275. Under this approach, a court stays the federal
proceedings and holds the habeas petition in abeyance while
the inmate pursues state remedies for his unexhausted claims.
Id. After the state court completes its review of
the inmate's claims, the federal court can lift its stay
and allow the inmate to proceed in federal court.
Id. at 275-76.
[I]t likely would be an abuse of discretion for a district
court to deny a stay and to dismiss a mixed petition if the
petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is
no indication that the petitioner engaged in intentionally
dilatory litigation tactics. In such circumstances, the
district court should stay, rather than dismiss, the mixed
petition. See Lundy, 455 U.S., at 522, 102 S.Ct.
1198 (the total exhaustion requirement was not intended to
“unreasonably impair the prisoner's right to
relief”). In such a case, the ...