United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING MOTION TO STAY AND HOLD IN
ABEYANCE PETITION FOR WRIT OF HABEAS CORPUS  AND
ADMINISTRATIVELY CLOSING THE CASE
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
case is brought pursuant to 28 U.S.C. § 2254. Michigan
prisoner Leslie McGinnis was convicted in the Wayne Circuit
Court of unarmed robbery and unlawful imprisonment, for which
he is serving a term of 16 years and 8 months to 50
years' imprisonment. McGinnis's pro se habeas
application is poorly drafted and difficult to follow. It
appears to raise at least nine claims: (1) the police used an
impermissibly suggestive identification procedure, (2) the
charging documents were defective, (3) the search of
McGinnis's vehicle violated the Fourth Amendment, (4) the
prosecutor withheld exculpatory evidence from the defense,
(5) the police violated McGinnis's Fifth Amendment rights
in obtaining a statement from him, (6) McGinnis's
confrontation rights were violated by admission of hearsay at
the suppression hearing, (7) McGinnis was denied access to
transcripts during his appeal, (8) McGinnis was erroneously
denied discovery and an expert witness, (9) McGinnis was
denied the effective assistance of counsel.
before the Court is McGinnis's motion to stay the
petition (ECF 2) so that he can exhaust his state court
remedies with respect to claims he wishes to raise in this
action that were not presented to the state courts on direct
claims that, following his conviction and sentence, he filed
a direct appeal in the Michigan Court of Appeals. His
appellate brief raised claims regarding the failure to
suppress evidence, sentencing, sufficiency of the evidence,
suggestive identification testimony, and the effectiveness of
defense counsel. The Michigan Court of Appeals affirmed
McGinnis's convictions in an unpublished opinion.
People v. McGinnis, No. 320629 (Mich. Ct. App. Sept.
10, 2015). McGinnis subsequently filed an application for
leave to appeal in the Michigan Supreme Court. The Michigan
Supreme Court denied the application on June 1, 2016.
People v. McGinnis, No. 152558 (Mich. Sup. Ct. June
1, 2016). McGinnis states that on August 25, 2017, he filed a
motion for relief from judgment in the trial court raising
the habeas claims that were not presented to the state courts
during his direct appeal. According to McGinnis, the motion
is still pending in the trial court.
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. § 2254 must first exhaust all state remedies.
See O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) ("state prisoners must give the state courts one
full fair opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process"); Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994). To satisfy this requirement,
the claims must be "fairly presented" to the state
courts, meaning that the prisoner must have asserted both the
factual and legal bases for the claims in the state courts.
See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.
2000); see also Williams v. Anderson, 460 F.3d 789,
806 (6th Cir. 2006) (citing McMeans).
federal district court has discretion to stay a petition
raising unexhausted claims to allow a petitioner to present
those 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 poses a concern, and when 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.
McGinnis's unexhausted claims do not appear to be plainly
meritless, and he does not appear to be engaged in dilatory
litigation tactics. McGinnis notes that he filed his motion
for relief from judgment with less than one month remaining
on the one-year statute of limitations. Dismissal of this
case while McGinnis completes exhaustion of his claims could
therefore result in a subsequent petition being barred by the
one-year statute of limitations found in 28 U.S.C. §
2244(d). The Court therefore concludes that it is not an
abuse of discretion to stay this case while McGinnis
completes exhaustion of his state remedies.
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 McGinnis in exhausting his state court
remedies, this Court will impose time limits within which he
must proceed with his state court post-conviction
proceedings. See Palmer v. Carlton, 276 F.3d 777,
781 (6th Cir. 2002).
is conditioned upon McGinnis diligently pursuing relief in
the state courts by pursuing timely appeals in the state
court of his motion for relief from judgment, and then
returning to federal court within sixty (60) days of
completing the exhaustion of his state post-conviction
remedies. Cf. Hargrove v. Brigano, 300 F.3d 717, 718
(6th Cir. 2002).
it is hereby ORDERED that Petitioner's
motion to stay  is GRANTED. The petition
for writ of habeas corpus shall be held in abeyance pending
completion of state post-conviction review proceedings. This
tolling is conditioned upon McGinnis timely appealing the
denial of his motion for relief from judgment through the
Michigan appellate courts and then re-filing his habeas
petition-using the case number already assigned to this
case-within sixty (60) days after the conclusion of the state
court post-conviction proceedings.
avoid administrative difficulties, the Court
ORDERS the Clerk of Court to
CLOSE this case for statistical purposes
only. Nothing in this order or in the related docket entry
shall be considered a dismissal or disposition of this
matter. See Sitto v. Bock, 207 F.Supp.2d 668, 677
(E.D. Mich. 2002).
IS FURTHER ORDERED that upon receipt of a motion to
reinstate the habeas petition following exhaustion of state
remedies, the Court may order the ...