United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PETITIONER'S MOTION TO STAY
PROCEEDINGS AND HOLD PETITION IN ABEYANCE AND
ADMINISTRATIVELY CLOSING CASE
CARAM STEEH UNITED STATES DISTRICT JUDGE.
a habeas case under 28 U.S.C. § 2254. Petitioner Mark
Carter is a state inmate at the Macomb Correctional Facility
in New Haven, Michigan. He challenges his convictions for
three counts of first-degree criminal sexual conduct, three
counts of third-degree criminal sexual conduct, and
kidnapping. Also before the Court is Petitioner's Motion
to Stay Proceedings and Hold Petition in Abeyance. The Court
grants the motion.
was charged with multiple sexual offenses in two cases which
were consolidated for trial. Following a jury trial in Wayne
County Circuit Court, Petitioner was convicted and sentenced
as a fourth habitual offender as follows: 37-1/2 to 75
years' imprisonment for the kidnapping conviction and
each of the first-degree criminal sexual conduct convictions,
and 10 to 15 years for each third-degree criminal sexual
conduct convictions, all to be served concurrently.
filed an appeal of right in the Michigan Court of Appeals,
raising three claims through counsel and additional claims in
a pro per supplemental brief. The Michigan Court of
Appeals affirmed Petitioner's convictions. People v.
Carter, Nos. 317812, 317828, 2015 WL 1214446 (Mich. Ct.
App. March 17, 2015). Petitioner filed an application for
leave to appeal in the Michigan Supreme Court. In lieu of
granting leave to appeal, the court 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, 498 Mich. 358
(2015). In all other respects, the court denied leave to
appeal. People v. Carter, 499 Mich. 864 (Mich. March
8, 2016). The state court's docket indicates that the
trial court conducted a post-conviction proceeding in
Petitioner's case on December 21, 2016. See People v.
Carter, No. 12-000953-01-FC (Wayne County Cir. Ct. Dec.
21, 2016). It is not clear, however, whether the trial court
re-sentenced Petitioner, affirmed the initial sentence, or
took some other action. Because the Court determines that a
stay is appropriate in this case, the Court need not resolve
this question at this juncture.
filed the pending habeas petition on May 30, 2017. Petitioner
also filed a motion to stay this proceeding so he may return
to state court and raise additional, unexhausted claims in
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 numerous claims of ineffective assistance of
counsel in state court.
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 conditions of the stay are not met,
the stay may later be vacated nunc pro tunc as of
the date the stay was entered, and the petition may be
dismissed.” Id. (internal quotation omitted).
the Court GRANTS Petitioner's “Motion to Stay
Proceedings and Hold Petition in Abeyance” (ECF No. 2).
The habeas petition is STAYED and further proceedings in this
matter are held in ABEYANCE. If Petitioner fails to file a
motion for relief from judgment with the state trial court
within sixty days from the date of this order, the Court will
dismiss the petition for writ of habeas corpus without
prejudice. Petitioner shall file a ...