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Foster v. Winn

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

September 28, 2017

ED FOSTER, Petitioner,
THOMAS WINN, Respondent.



         Ed Foster, a Michigan prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. (R. 1.) Foster challenges his state-court conviction for felony-murder. The petition raises seven claims for relief. Now before the Court are Foster's Motion to Amend/Supplement Ground One of Petition and Motion to Hold Petition in Abeyance. (R. 12, 13.) For the reasons set forth, the Court will grant the motion to amend/supplement in part, grant the motion to hold the petition in abeyance, establish conditions under which Foster must proceed, and administratively close the matter.


         Foster was convicted of felony-murder following a jury trial in Van Buren County Circuit Court and sentenced to life imprisonment without the possibility of parole. His conviction was affirmed on direct appeal by the Michigan Court of Appeals. People v. Foster, No. 301361, 2013 WL 4033639 (Mich. Ct. App. Aug. 8, 2013). The Michigan Supreme Court then denied Foster's application for leave to appeal. People v. Foster, 496 Mich. 855 (Mich. 2014).

         On June 16, 2015, Foster filed the pending habeas corpus petition.


         A. Motion to Amend/Supplement

         Foster asks the court to allow him to amend or supplement ground one of his petition asserting that the prosecutor knowingly presented perjured testimony of a key witness, Keith Nickerson. Federal Rule of Civil Procedure 15 is applicable to habeas proceedings. Mayle v. Felix, 545 U.S. 64, 655 (2005). Pursuant to this Rule the Court "should freely give leave when justice so requires." Fed.R.Civ.P. 15(a)(2). In deciding whether to grant a motion to amend the petition, the Court considers bad faith, undue delay, prejudice to the opposing party, futility of the amendment, and whether the petitioner previously amended his pleadings. See, e.g., Foman v. Davis, 371 U.S. 178 (1962); Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998).

         Foster first seeks to amend his petition to provide additional support and argument for the Keith Nickerson perjured testimony claim. This request does not appear to be made in bad faith and this is Foster's first motion to amend his pleadings. Futility is not an issue because Foster does not seek to add a new claim for relief, just to supplement his existing argument. And even though Winn has filed a response and a Rule 5 filing, he makes no claim of prejudice. The Court recognizes that Foster's motion to amend comes twenty-one months after he filed his petition, but mere undue delay alone is insufficient to deny a motion to amend and again, Respondent does not claim prejudice. Coe, 161 F.3d at 342. For these reasons, and because Winn does not oppose it, the Court will grant this portion of Foster's motion.

         Foster also seeks to supplement the petition with the affidavit of Tommie Jeffries, which, he argues, advances his theory that there was a "common theme" of police coercing witnesses to testify falsely. (R. 12, PID 5744-45.) This affidavit was not presented to the state courts. "Although state prisoners may sometimes submit new evidence in federal court, AEDPA's statutory scheme is designed to strongly discourage them from doing so." Cullen v. Pinholster, 563 U.S. 170, 186 (2011). When the state courts have adjudicated a claim on the merits, a federal court's review in habeas corpus proceedings is ordinarily limited to the record presented to the state courts. Id. at 180; see also Holland v. Jackson, 542 U.S. 649, 652 (2004) (per curiam). Foster's motion does not address the propriety of expanding the record in this case and a review of the Michigan Court of Appeals' opinion suggests that they adjudicated Foster's perjured testimony claim on the merits. (R. 9-31, PID 5101-5104.) Thus, as consideration of the proposed affidavit on habeas review is likely to be "categorically barred, " Shoemaker v. Jones, 600 F.App'x 979, 983 n. 1 (6th Cir. 2015), the Court is going to deny Foster's request to supplement the petition with Jeffries' affidavit.[1]

         B. Motion to Hold Petition in Abeyance

         Foster has filed a separate motion to hold the petition in abeyance to allow him to go back to state court to raise three additional claims: an ineffective-assistance-of-trial-counsel claim based upon a failure to investigate claims of coercive police interrogation tactics, an ineffective-assistance-of-appellate-counsel claim, and another perjured testimony claim for several other witnesses besides Keith Nickerson. (R. 13.)

         A federal habeas petitioner must first exhaust all available remedies in state court, 28 U.S.C. § 2254(b), but a federal court may stay a federal habeas corpus proceeding pending resolution of yet unexhausted state post-conviction proceedings. See Rhines v. Weber, 544 U.S. 269, 276 (2005) ("District courts do ordinarily have authority to issue stays where such a stay would be a proper exercise of discretion.") (citations omitted). In Rhines, the Supreme Court held that a federal court may stay a petition for habeas corpus relief and hold further proceedings in abeyance while a petitioner exhausts unexhausted claims if outright dismissal of the petition would jeopardize the timeliness of a future petition, there is good cause for the petitioner's failure to exhaust state court remedies, the unexhausted claims are not "plainly meritless, " and "there is no indication that the petitioner engaged in intentionally dilatory tactics." Id. at 278.

         The Rhines decision, however, concerned a mixed habeas petition, that is, the petition presented claims that had been properly exhausted in state court and claims that had not. Id. at 272-73. The petition at issue in this case raises only exhausted claims. Foster seeks a stay to allow him to present additional unexhausted claims in state court. While Rhines did not address this precise situation, this Court has held that such a stay may be appropriate. See Thomas v. Stoddard, 89 F.Supp.3d 937 (E.D. Mich. 2015); see also Armour v. MacLaren, No. 15-10753, 2015 WL 9918195, at *1 (E.D. Mich. Dec. 4, 2015). Other federal courts have also allowed for stays of fully exhausted federal habeas corpus petitions pending the exhaustion of other claims in state court. See Mena v. Long,813 F.3d 907, 910 (9th Cir. 2016) (holding that a ...

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