United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING MOTION TO HOLD PETITION
FOR WRIT OF HABEAS CORPUS IN ABEYANCE [DKT. 13]
D. BORMAN, UNITED STATES DISTRICT JUDGE.
a habeas case filed by a Michigan prisoner under 28 U.S.C.
Elmore Nichols, Jr. was convicted after a bench trial in
Wayne Circuit Case No. 12-008776 of first-degree home
invasion. Mich. Comp. Laws § 750.110a(2). The court
sentenced him as a fourth-time habitual felony offender to a
term of 280 months to 60 years'
imprisonment. The petition raises a single claim:
Petitioner was denied his Sixth Amendment right to
self-representation when the trial court perfunctorily denied
his request to represent himself at trial. Presently before
the Court is Petitioner's motion to hold the petition in
abeyance while he exhausts his state court remedies with
respect to a new sentencing claim. Dkt. 13. For the reasons
that follow, the motion will be granted.
his conviction and sentence, Petitioner filed a direct appeal
in the Michigan Court of Appeals. His appellate brief raised
claims concerning the denial of the right to
self-representation, the trial court's lack of inquiry
into the breakdown of Petitioner's relationship with his
trial counsel, and the scoring of the sentencing guidelines.
Michigan Court of Appeals rejected the first two claims, and
it affirmed Petitioner's conviction in an unpublished
opinion. People v. Nichols, No. 315284 (Mich. Ct.
App. June 17, 2014). The court agreed with Petitioner's
third claim, however, and vacated Petitioner's sentence
and remanded the case to the trial court for resentencing.
Id., at *5. Petitioner filed an application for
leave to appeal in the Michigan Supreme Court raising only
his self-representation claim. The Michigan Supreme Court
denied the application because it was not persuaded that the
question presented should be reviewed. People v.
Nichols, 858 N.W.2d 456 (Mich. 2015).
subsequently filed the instant action, again asserting that
the trial court violated his right to self-representation.
During review of the case it was revealed that the trial
court never resentenced Petitioner as directed by the
Michigan Court of Appeals. The parties were directed to file
supplemental briefs addressing whether the Court had
jurisdiction to consider the petition.
indicated in its supplemental brief that it contacted the
Wayne County Prosecutor's Office and learned that the
failure to resentence Petitioner was inadvertent. Respondent
indicated that a resentencing hearing was scheduled to take
place on November 18, 2016. Dkt. 12, at 3.
Wayne Circuit Court's website indicates that Petitioner
was thereafter erroneously resentenced on Wayne Circuit Case
No. 12-007351 instead of No. 12-008776, the sentence that was
vacated by the Michigan Court of Appeals. On March 21,
2017, Petitioner filed a motion in the trial court
complaining that he was resentenced for the wrong conviction.
The docket for Wayne Circuit Case No. 12-008776, meanwhile,
seems to indicate that a claim of appeal was filed on July
10, 2017, and that on August 7, 2017, Petitioner was
appointed appellate counsel.
has filed a motion to hold this case in abeyance while he
appeals the erroneous failure to resentence him on the
conviction challenged by his habeas petition. Petitioner
asserts that his due process right to be sentenced within a
reasonably prompt time has been violated by the inordinate
federal district court has discretion to stay a petition to
allow a petitioner to present unexhausted claims to the state
courts and then return to federal court on a perfected
petition. See Rhines v. Weber, 544 U.S. 269, 276
(2005). Stay and abeyance is available only in “limited
circumstances” such as when the one-year statute of
limitations under 28 U.S.C. § 2244(d) poses a concern,
the petitioner demonstrates “good cause” for the
failure to exhaust state remedies before proceeding in
federal court, the petitioner has not engaged in
intentionally dilatory litigation tactics, and the
unexhausted claims are not “plainly meritless.”
Id. at 277.
pending case, Petitioner's unexhausted delay in
resentencing claim does not appear to be plainly meritless,
nor does Petitioner appear to be engaged in dilatory
litigation tactics. Petitioner notes that he filed a
post-conviction motion challenging his resentencing on March
21, 2017. Because of potential concerns posed by the one-year
statute of limitations while Petitioner pursues relief in the
state courts, the Court concludes that the case should be
stayed and held in abeyance while Petitioner exhausts his
state remedies with respect to his resentencing claim.
district court determines that a stay is appropriate pending
exhaustion 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. Therefore, to ensure that
there are no delays by Petitioner in exhausting his state
court remedies, this Court will impose upon Petitioner time
limits within which he must ...