United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION
FOR WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE
ARTHUR J. TARNOW, UNITED STATES DISTRICT JUDGE
Vertis Dent, (“Petitioner”), confined at the
Michigan Reformatory in Ionia, Michigan, filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his convictions and sentences
for assault with intent to do great bodily harm, M.C.L.A.
750.84, possession of a firearm in the commission of a
felony, M.C.L.A. 750.227b; and felon in possession of a
firearm, M.C.L.A. 750.224f.
has filed a motion hold the petition in abeyance pending his
re-sentencing in the state trial court and also to permit him
to file a post-conviction motion to present additional claims
that have not been exhausted with the state courts. The Court
holds the petition in abeyance and stays the proceedings
under the terms outlined in this opinion. The Court
administratively closes the case.
was convicted following a jury trial in the Wayne County
Circuit Court. Petitioner's conviction was affirmed on
appeal but the case was remanded to the trial court for
re-sentencing in light of the Michigan Supreme Court's
decision in People v. Lockridge, 498 Mich. 358; 870
N.W.2d 502 (Mich. 2015), which held that Michigan's
Sentencing Guidelines scheme violates the Sixth Amendment
right to a jury trial. People v. Dent, No. 325562,
2016 WL 2942231 (Mich. Ct. App. May 19, 2016), lv.
den. 500 Mich. 899, 887 N.W.2d 417 (2016). It is unclear
whether petitioner's re-sentencing hearing has been
conducted in the state trial court.
August 30, 2017, petitioner filed his application for writ of
habeas corpus. Petitioner seeks habeas relief on the
grounds that he raised in the state courts on his direct
filed a motion to stay the proceedings and hold the petition
in abeyance pending his re-sentencing and any possible appeal
from the resentencing. Petitioner also seeks to have the
petition held in abeyance so that he can file a
post-conviction motion for relief from judgment to exhaust
new claims with the state courts which are not included in
the current petition.
federal district court is authorized to stay fully exhausted
federal habeas petitions pending the exhaustion of other
claims in the state courts. See Nowaczyk v. Warden, New
Hampshire State Prison, 299 F.3d 69, 77-79 (1st Cir.
2002)(holding that district courts should “take
seriously any request for a stay.”); Anthony v.
Cambra, 236 F.3d 568, 575 (9th Cir. 2000); See also
Bowling v. Haeberline, 246 F. App'x. 303, 306 (6th
Cir. 2007)(a habeas court is entitled to delay a decision in
a habeas petition that contains only exhausted claims
“when considerations of comity and judicial economy
would be served”)(quoting Nowaczyk, 299 F.3d
at 83); See also Thomas v. Stoddard, 89 F.Supp.3d
937, 943 (E.D. Mich. 2015). Indeed, although there is no
bright-line rule that a district court can never dismiss a
fully-exhausted habeas petition because of the pendency of
unexhausted claims in state court, in order for a federal
court to justify departing from the “heavy obligation
to exercise jurisdiction, ” there must be some
compelling reason to prefer a dismissal over a stay.
Nowaczyk, 299 F.3d at 82 (internal quotation
omitted); See also Bowling, 246 F. App'x. at 306
(district court erred in dismissing petition containing only
exhausted claims, as opposed to exercising its jurisdiction
over petition, merely because petitioner had independent
proceeding pending in state court involving other claims).
Court grants petitioner's motion to hold the petition in
abeyance during the pendency of petitioner's
re-sentencing in the trial court and any possible appeal from
that re-sentencing. The Court also grants petitioner's
motion to hold the petition in abeyance during the pendency
of any post-conviction motion in the state
courts. The outright dismissal of the petition,
albeit without prejudice, might result in preclusion of
consideration of the petitioner's claims in this Court
due to the expiration of the one year statute of limitations
contained in the Antiterrorism and Effective Death Penalty
Act (AEDPA). See 28 U.S.C. § 2244(d)(1). A
common circumstance calling for abating a habeas petition
arises when the original petition was timely filed, but a
second, exhausted habeas petition would be time barred by the
AEDPA's statute of limitations. See Hargrove v.
Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002).
making this determination, “the Court considers the
consequences to the habeas petitioner if it were to proceed
to adjudicate the petition and find that relief is not
warranted before the state courts ruled on unexhausted
claims. In that scenario, should the petitioner subsequently
seek habeas relief on the claims the state courts rejected,
he would have to clear the high hurdle of filing a second
habeas petition.” Thomas, 89 F.Supp.3d at 942
(citing 28 U.S.C. 2244(b)(2)). Moreover, “[I]f this
Court were to proceed in parallel” during the pendency
of petitioner's various state court proceedings,
“there is a risk of wasting judicial resources if the
state court might grant relief on the unexhausted
considerations merit granting a stay also. This Court is
currently not in a position to determine whether
petitioner's new claims have any merit, thus, the Court
cannot say that petitioner's claims are “plainly
meritless.” Thomas, 89 F.Supp.3d at 943. Nor,
on the other hand, can the Court at this time say that
petitioner's new claims plainly warrant habeas relief.
Id. If the state courts deny post-conviction relief,
this Court would still benefit from the state courts'
adjudication of these claims in determining whether to permit
petitioner to amend his petition to add these claims.
Id. Finally, this Court sees no prejudice to
respondent in staying this case, whereas petitioner
“could be prejudiced by having to simultaneously fight
two proceedings in separate courts and, as noted, if this
Court were to rule before the state courts, [petitioner]
would have the heavy burden of satisfying 28 U.S.C. §
requirements” should he seek habeas relief on his new
claims. Thomas, 89 F.Supp.3d at 943.
even where a district court determines that a stay is
appropriate pending exhaustion, the district court
“should place reasonable time limits on a
petitioner's trip to state court and back.”
Rhines v. Weber, 544 U.S. 269, 278 (2005). To ensure
that there are no delays by petitioner in exhausting state
court remedies, this Court imposes time limits within which
petitioner must proceed with his various state court
proceedings. See Palmer v. Carlton, 276 F.3d 777,
781 (6th Cir. 2002).