United States District Court, E.D. Michigan, Southern Division
Patricia T. Morris, United States Magistrate Judge
ORDER DISMISSING CASE NUMBER 2:17-CV-12133, GRANTING
THE MOTION FOR A STAY IN CASE NUMBER 2:17-CV-12206, AND
CLOSING CASE NUMBER 2:17-CV-12206
GERSHWIN A. DRAIN, United States District Judge
matters come before the Court on two habeas corpus cases
filed by Diane Arellano (“Arellano” or
“Petitioner”). On June 28, 2017, Petitioner filed
a “Memorandum of Law in Support of Motion to Expand
Record.” Arellano v. Stewart, 17-cv-12133,
(E.D. Mich. Jun. 28, 2017), Dkt. No. 1 (“Arellano
I”). Because the memorandum appeared to challenge
Petitioner's first-degree murder conviction, the
memorandum was treated as a habeas corpus petition and
assigned case number 2:17-cv-12133.
30, 2017, Arellano filed a habeas corpus petition, along with
the filing fee and a motion for a stay. Arellano v.
Stewart, 17-cv-12206, (E.D. Mich. June 30, 2017), Dkt.
Nos. 1-3 (“Arellano II”). This petition
was treated as a new case and assigned case number
habeas petition, Arellano outlines that in 2014 she was
convicted of first-degree murder and possession of a firearm
during the commission of a felony, and sentenced to life
imprisonment without the possibility of parole. Id.
at Dkt. No. 1 (Pg. ID 1). The Michigan Court of Appeals
affirmed her convictions, see People v. Arellano,
No. 322886, 2015 WL 7370072 (Mich. Ct. App. Nov. 19, 2015),
and on June 28, 2016, the Michigan Supreme Court denied leave
to appeal. See People v. Arellano, 499 Mich. 969,
880 N.W.2d 578 (Mich. 2016).
habeas petition contains only one ground for relief: that the
officer in charge of her state criminal case improperly
invaded the province of the jury. Arellano II,
17-cv-12206, Dkt. No. 1, p. 5 (Pg. ID 5). On May 29, 2017,
however, Petitioner allegedly filed a motion for relief from
judgment in the state courts in which she raised several
claims regarding her trial and her appellate attorneys, and
the police and prosecutor. Id. at p. 7 (Pg. ID 7).
She also asserted her innocence as to the crimes for which
she is incarcerated. Id. at p. 3 (Pg. ID 3). The
state trial court denied Petitioner's motion, and her
appeal from the trial court's decision is pending in the
Michigan Court of Appeals. Id. at pp. 3-4 (Pg. ID
3-4). In Arellano's motion for a stay presently before
the Court, she asks the Court to hold her petition in
abeyance until the state courts have concluded their review
of her post-conviction motion. Id. at Dkt. No. 2, p.
1-2 (Pg. ID 1-2).
doctrine of exhaustion of state remedies requires state
prisoners to give state courts an opportunity to act on their
claims before they present their claims in a federal habeas
corpus petition. See 28 U.S.C. § 2254(b)(1)(A);
O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). This requirement is satisfied if the prisoner
“invok[es] one complete round of the State's
established appellate review process, ” including a
petition for discretionary review in the state supreme court
“when that review is part of the ordinary appellate
review procedure in the State.”
O'Sullivan, 526 U.S. at 845, 847. Thus, to
properly exhaust state remedies, a prisoner must fairly
present the factual and legal basis for each of his or her
claims to the state court of appeals and state supreme court
before raising the claims in a habeas corpus petition.
Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir.
2009). A federal court ordinarily must dismiss a habeas
petition that contains a claim not exhausted in the state
courts. Rose v. Lundy, 455 U.S. 509, 510 (1982).
seems to have exhausted state remedies for the claim
regarding the officer in charge of her case, but she seeks to
raise additional claims in an amended petition. She intends
to file the amended petition as soon as the state courts have
concluded their review of her post-conviction motion.
Dismissing Arellano's habeas petition as she continues to
seek state remedies for new claims could result in a bar of a
subsequent petition pursuant to the one-year statute of
limitations, enacted after the decision in Rose.
See 28 U.S.C. § 2244(d) (effective April 24,
resolve this tension between the total exhaustion rule and
the one-year statute of limitations, the Supreme Court has
approved a “stay-and-abeyance” procedure for
cases with a “mixed” petition of exhausted and
unexhausted claims. See Rhines v. Weber, 544 U.S.
269, 275-77 (2005). Under this procedure, a district court
stays the federal proceeding and holds the habeas petition in
abeyance while the petitioner pursues state remedies for his
or her unexhausted claims. Id. After a state court
completes its review of a petitioner's claims, the
federal court can lift its stay and allow the petitioner to
proceed in federal court. Id. at 275-76. This
procedure is limited to circumstances where the petitioner
“had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is
no indication that he engaged in intentionally dilatory
litigation tactics.” Id. at 278. When a
petitioner satisfies those conditions, “the district
court should stay, rather than dismiss, the mixed
current petition is not a “mixed petition” of
exhausted and unexhausted claims; it contains only the
exhausted claim about the testimony of the officer in charge
of her case. Federal district courts, however,
“ordinarily have authority to issue stays, ”
id. at 276, and some federal circuit courts have
applied the stay-and-abeyance procedure described in
Rhines to cases where the petition was not
“mixed.” See Mena v. Long, 813 F.3d 907,
908 (9th Cir. 2016) (holding that “the Rhines
stay-and-abeyance procedure is not limited to mixed
petitions” and “a district court may stay a
petition that raises only unexhausted claims”)
(emphasis in original); Doe v. Jones, 762 F.3d 1174,
1181 (10th Cir. 2014) (concluding district court had
discretion to consider a Rhines stay even though the
petitioner filed an “unmixed” petition),
cert. denied, 135 S.Ct. 1424 (2015); Heleva v.
Brooks, 581 F.3d 187, 191-92 (3d Cir. 2009) (concluding
from Pace v. DiGuglielmo, 544 U.S. 408 (2005), that
the Supreme Court seems to have “open[ed] the door to
utilizing the stay-and-abeyance procedure in at least some
limited circumstances beyond the presentation of a mixed
petition” and that “the District Court's
interpretation of Rhines as foreclosing the
possibility of a stay for Heleva was in error”).
appellate rulings are eminently reasonable because in
Pace, 544 U.S. at 416, the Supreme Court permitted
prisoners seeking state post-conviction relief to file
“protective” petitions in federal court and ask
the federal court to stay and abey the federal habeas
proceedings until state remedies were exhausted. Similarly,
in Duncan v. Walker, 533 U.S. 167, 182-83 (2001),
former Justice Stevens stated that:
[I]n our post-AEDPA world there is no reason why a district
court should not retain jurisdiction over a meritorious claim
and stay further proceedings pending the complete exhaustion
of state remedies. Indeed, there is every reason to do so . .
. when the failure to retain jurisdiction would foreclose
federal review of a ...