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
JOHN CORBETT O'MEARA, UNITED STATES DISTRICT JUDGE.
a habeas case under 28 U.S.C. § 2254. Petitioner Robert
Kirby is a state inmate at the Michigan Reformatory in Ionia,
Michigan. He challenges his convictions for first-degree home
invasion and possession of a firearm during the commission of
a felony. Also before the Court is Petitioner's Motion to
Stay Proceedings and Hold Petition in Abeyance. The Court
grants the motion.
was charged in Wayne County Circuit Court with 25 total
counts: three counts of armed robbery, one count of
first-degree home invasion, three counts of unlawful
imprisonment, nine counts of receiving/concealing stolen
firearms, six counts of larceny of firearms, one count of
being a felon in possession of a firearm, one counts of
larceny in a building, one count of escape while awaiting
trial, and one count of felony firearm. In addition, a
habitual offender third notice was filed. Petitioner was on
parole at the time he was charged with these offenses.
pleaded guilty in Wayne County Circuit Court to first-degree
home invasion and possession of a firearm during the
commission of a felony, in exchange for the dismissal of the
remaining charges. On February 17, 2011, he was sentenced to
8 to 20 years' imprisonment for the first-degree home
invasion conviction and two years' imprisonment for the
filed an application for leave to appeal in the Michigan
Court of Appeals raising these claims: (i) counsel improperly
waived right to enter a conditional plea, (ii) ineffective
assistance of counsel, (iii) counsel failed to investigate,
(iv) prosecutorial misconduct, and (v) guilty plea was
involuntary. The Michigan Court of Appeals denied leave to
appeal. People v. Kirby, No. 307075 (Mich. Ct. App.
Feb. 13, 2012). The Michigan Supreme Court denied
Petitioner's application for leave to appeal. People
v. Kirby, 492 Mich. 854 (Mich. July 24, 2012).
then filed a habeas corpus petition, raising the same claims
raised in state court, and a motion for stay. The Court
granted the stay and administratively closed the matter.
After Petitioner exhausted his state court remedies, he
returned to this Court. The Court granted Petitioner's
request to reopen the proceedings and to file an amended
petition. Respondent filed an answer in opposition to the
before the Court is Petitioner's second request for a
stay. Petitioner seeks a stay based upon newly-discovered
evidence which forms the basis for a second round of state
court collateral proceedings.
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 he is currently seeking
collateral review in state court based upon newly-discovered
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 that he could not have previously
exhausted these claims because they are newly-discovered.
Third, Petitioner's new claims allege the denial of
federally protected constitutional rights. 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 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 ...