United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti Mag. Judge
OPINION AND ORDER GRANTING THE MOTION TO HOLD IN
ABEYANCE THE PETITION FOR A WRIT OF HABEAS CORPUS ,
ADMINISTRATIVELY CLOSING THE CASE, AND DENYING WITHOUT
PREJUDICE THE MOTION FOR THE APPOINTMENT OF COUNSEL
E. Levy United States District Judge
Cain, (“petitioner”), confined at the St. Louis
Correctional Facility in St. Louis, Michigan, filed a pro
se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his conviction for two counts
of assault with intent to commit murder, Mich. Comp. Laws
§ 750.83. Petitioner filed a motion to hold the petition
in abeyance to permit him to complete post-conviction
proceedings in the state courts, where he is attempting to
exhaust unexhausted claims with the state courts that are not
included in his current habeas petition. (Dkt. 2.)
Court will grant the motion to hold the petition in abeyance.
Proceedings will be stayed and this case will be
administratively closed under the terms set forth in this
opinion to permit petitioner to return to the state courts to
exhaust his additional claims. The motion for the appointment
of counsel (Dkt. 3) is denied without prejudice.
was convicted by a jury in the Wayne County Circuit Court.
Petitioner's conviction was affirmed on appeal.
People v. Cain, No. 313303, 2015 WL 1814035 (Mich.
Ct. App. Apr. 21, 2015); leave to appeal denied, 498
Mich. 887 (2015).
filed a post-conviction motion for relief from judgment with
the trial court, which was denied. People v. Cain,
No. 12-003375 (Wayne Cty. Cir. Ct. Dec. 13, 2016). Petitioner
filed a post-conviction appeal, which remains pending in the
Michigan Court of Appeals.
filed a petition for writ of habeas corpus on June 21,
2017. Petitioner also filed a motion to hold the
case in abeyance while he finishes exhausting additional
claims in the state court. Petitioner also filed a motion for
the appointment of counsel.
The Motion to Hold the Petition in Abeyance Is
federal district court has the power to stay fully exhausted
federal habeas petitions pending the exhaustion of other
claims in the state courts. See Nowaczyk v. Warden, N.H.
State Prison, 299 F.3d 69, 77-79 (1st Cir. 2002)(holding
that district courts should “take seriously any request
for a stay”), Anthony v. Cambra, 236 F.3d 568,
575 (9th Cir. 2000); see also Bowling v. Haeberline,
246 Fed.Appx. 303, 306 (6th Cir.2007)(a habeas court is
entitled to delay a decision in a habeas petition that
contains only exhausted claims “when considerations of
comity and judicial economy would be served”)(quoting
Nowaczyk, 299 F.3d at 83), Thomas v.
Stoddard, 89 F.Supp.3d 937, 943 (E.D. Mich. 2015).
no bright-line rule exists to prevent a district court from
dismissing a fully-exhausted habeas petition during the
pendency of unexhausted claims in state court, in order for a
federal court to justify departing from the “heavy
obligation to exercise jurisdiction, ” there must be a
compelling reason to prefer a dismissal over a stay.
Nowaczyk, 299 F.3d at 82 (internal quotation
omitted); see also Bowling, 246 F. App'x. at 306
(district court erred in dismissing petition containing only
exhausted claims, as opposed to exercising its jurisdiction
over petition, merely because petitioner had independent
proceeding pending in state court involving other claims).
Court grants the motion to hold the petition in abeyance
while petitioner finishes exhausting his new claims. In
making this determination, “the Court considers the
consequences to the habeas petitioner if it were to proceed
to adjudicate the petition and find that relief is not
warranted before the state courts ruled on unexhausted
claims. In that scenario, should the petitioner subsequently
seek habeas relief on the claims the state courts rejected,
he would have to clear the high hurdle of filing a second
habeas petition.” Thomas, 89 F.Supp.3d at 942
(citing 28 U.S.C. 2244(b)(2)). Moreover, “[i]f this
Court were to proceed in parallel with state post-conviction
proceedings, there is a risk of wasting judicial resources if
the state court might grant relief on the unexhausted
considerations merit granting a stay. This Court is unable at
this point to determine whether petitioner's new claims
are meritorious or plainly warrant habeas relief.
Accordingly, the Court cannot say that petitioner's
claims are “plainly meritless.” Id. at
943. If the state courts deny post-conviction relief, this
Court could still benefit from the state courts'
adjudication of these claims in determining whether to permit
petitioner to amend his petition to add these claims.
Id. Finally, respondent would not be prejudiced by a
stay, whereas petitioner “could be prejudiced by having
to simultaneously fight two proceedings in separate courts
and, as noted, if this Court were to rule before the state