United States District Court, E.D. Michigan, Southern Division
MICHAEL A. DARBY, Petitioner,
CONNIE HORTON, Respondent,
OPINION AND ORDER (1) GRANTING MOTION TO AMEND
PETITION FOR WRIT OF HABEAS CORPUS (ECF #14), (2) HOLDING IN
ABEYANCE AMENDED PETITION FOR WRIT OF HABEAS CORPUS, AND (3)
ADMINISTRATIVELY CLOSING THE CASE.
MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE.
March 2, 2017, state prisoner Petitioner Michael A. Darby
filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (See ECF #1.) On
October 10, 2017, Darby filed a motion to amend his habeas
petition and to hold the amended petition in abeyance so that
he could return to the state courts to exhaust new claims he
has raised. (See ECF #14.) The Court
GRANTS Darby's motion pursuant to the
terms set forth below. If Darby fails to comply with these
terms, the Court could dismiss his habeas petition without
proposed amendment advances new claims that may have arguable
merit. See e.g., Braden v. United States,
817 F.3d 926, 930 (6th Cir. 2016). The Court will therefore
the Court permit Darby to amend his habeas petition to add
the new claims raised in his amendment.
prisoner who seeks federal habeas relief must first exhaust
his or her available state court remedies before raising a
claim in federal court. See 28 U.S.C. § 2254(b)
and (c). See also Picard v. Connor, 404 U.S. 270,
275-78 (1971). Darby's new claims, by his own admission,
have not been exhausted with the state courts. In order to
prevent a habeas petitioner from potentially exhausting the
one year statute of limitations included in 28 U.S.C. §
2244(d)(1), a federal court may opt to stay a federal habeas
petition and hold further proceedings in abeyance pending the
resolution of state court post-conviction proceedings.
See Rhines v. Weber, 544 U.S. 269, 278 (2005). The
Court concludes that such a stay is appropriate here.
Court's decision to stay these proceedings and to hold
the amended petition in abeyance is conditioned upon
Darby's (1) initiating proceedings in state court within
sixty days of receiving this Order and (2) returning to this
Court within sixty days of exhausting his state-court
remedies. See Hargrove v. Brigano, 300 F.3d 717, 718
(6th Cir. 2002).
order to properly exhaust his claims in state court, Darby
must first file a motion for relief from judgment with the
state trial court under Michigan Court Rule 6.502. See
e.g. Wagner v. Smith, 581 F.3d 410, 419 (6th Cir. 2009).
See also Mikko v. Davis, 342 F.Supp.2d 643, 646
(E.D. Mich. 2004). If the state trial court denies
Darby's motion, then in order to fully exhaust his
claims, Darby must seek leave to appeal in the Michigan Court
of Appeals, and, if necessary, in the Michigan Supreme Court.
See M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302.
See also Nasr v. Stegall, 978 F.Supp. 714, 717 (E.D.
Mich. 1997); Mohn v. Bock, 208 F.Supp.2d 796, 800
(E.D. Mich. 2002). Finally, within 60 days of fully
exhausting the new claims in state court, Darby must return
to this Court with a motion to reopen the petition, using the
same caption and case number included at the top of this
Order, within 60 days of fully exhausting his state court
remedies. See Palmer v. Carlton, 276 F.3d 777, 781
(6th Cir. 2002) (adopting approach described in Zarvela
v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001)). Should
Darby fail to comply with any of these conditions, the Court
could dismiss his amended habeas petition without prejudice.
Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014).
for the reasons stated above, Darby's motion to amend his
petition for a writ of habeas corpus (ECF #14) is
GRANTED. Darby's amended habeas petition
shall be held in abeyance pending completion of the
state-court proceedings described in this Order. For
administrative purposes, 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 Thomas v. Stoddard,
89 F.Supp.3d 937, 943-44 (E.D. Mich. 2015). Upon receipt of
an Amended Petition, the Court will order the Clerk of the
Court to reopen this case for statistical purposes.
IS SO ORDERED.
 On October 10, 2017, Darby also filed
an application proceed in this action without the prepayment
of fees or costs. (See ECF #13.) The Court
DENIES that application as
MOOT because Darby has already paid ...