United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART PETITONER'S MOTION TO AMEND/SUPPLEMENT GROUND ONE OF
PETITION ; GRANTING PETITIONER'S MOTION TO HOLD
PETITION IN ABEYANCE ; AND ADMINISTRATIVELY CLOSING
J. MICHELSON, UNITED STATES DISTRICT JUDGE
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.
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).
16, 2015, Foster filed the pending habeas corpus petition.
Motion to Amend/Supplement
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.
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
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.
Motion to Hold Petition in Abeyance
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.)
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.
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