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Cain v. McCullick

United States District Court, E.D. Michigan, Southern Division

July 17, 2017

Brendan Cain, Petitioner,
v.
Mark McCullick, Respondent.

          Anthony P. Patti Mag. Judge

          OPINION AND ORDER GRANTING THE MOTION TO HOLD IN ABEYANCE THE PETITION FOR A WRIT OF HABEAS CORPUS [2], ADMINISTRATIVELY CLOSING THE CASE, AND DENYING WITHOUT PREJUDICE THE MOTION FOR THE APPOINTMENT OF COUNSEL [3]

          Judith E. Levy United States District Judge

         Brandon 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.)

         The 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.

         I. Background

         Petitioner 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).

         Petitioner 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.

         Petitioner filed a petition for writ of habeas corpus on June 21, 2017.[1] 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.

         II. Discussion

         A. The Motion to Hold the Petition in Abeyance Is Granted.

         A 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).

         Although 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).

         The 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 claim.” Id.

         Other 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 ...


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