United States District Court, E.D. Michigan, Southern Division
CONRAD R. GARDNER, Petitioner,
ERIC BALCARCEL, Respondent.
ORDER GRANTING PETITIONER'S REQUEST TO STAY
PROCEEDINGS AND HOLD PETITION IN ABEYANCE AND
ADMINISTRATIVELY CLOSING CASE
CORBETT O'MEARA, UNITED STATES DISTRICT JUDGE
state prisoner Robert Kirby, through counsel, has filed a
habeas corpus petition under 28 U.S.C. § 2254.
Petitioner challenges his conviction for first-degree
criminal sexual conduct. Petitioner also requests a stay of
these proceedings to allow him to exhaust state court
remedies. The Court grants the request.
was convicted in Oakland County Circuit Court of first-degree
criminal sexual conduct. On September 3, 2014, he was
sentenced to 25 to 70 years imprisonment.
filed an appeal of right in the Michigan Court of Appeals
raising three claims: hearsay testimony improperly admitted;
motion for a directed verdict improperly denied; and
ineffective assistance of counsel. The Michigan Court of
Appeals affirmed Petitioner's conviction. People v.
Gardner, No. 323883, 2015 WL 9487673 (Mich. Ct. App.
Dec. 29, 2015). The Michigan Supreme Court denied leave to
appeal. People v. Gardner, 499 Mich. 971 (Mich.
then filed this habeas corpus petition and a request for a
prisoners must exhaust available state remedies for each of
the claims presented in a habeas petition before seeking a
federal writ of habeas corpus. 28 U.S.C. § 2254(b)(1).
Petitioner seeks a stay to allow him to exhaust several
ineffective assistance of counsel claims in state court.
federal court may stay a federal habeas petition and hold
further proceedings in abeyance pending resolution of state
court post-conviction proceedings if outright dismissal of a
habeas petition would jeopardize the timeliness of a future
petition, there is good cause for the petitioner's
failure to exhaust those claims, the unexhausted claims are
not “plainly meritless, ” and “there is no
indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Rhines v. Weber,
544 U.S. 269, 278 (2005).
Court finds that a stay is warranted in this case. First, the
outright dismissal of the petition, even without prejudice,
may preclude future consideration of Petitioner's claims
in this court due to the expiration of the statute of
limitations. See 28 U.S.C. § 2241(d)(1). The
one-year limitations period begins 90 days after the
conclusion of direct appeal. Gonzalez v. Thaler, 565
U.S. 653-54 (2012) (stating that a conviction becomes final
when the time for filing a certiorari petition expires). The
Michigan Supreme Court denied leave to appeal on June 28,
2016, and the time for seeking a writ of certiorari with the
United States Supreme Court expired 90 days later - on
September 27, 2016. The one-year limitations period commenced
the next day, September 28, 2016. See Fed. R. Civ.
P. 6(a); Bronaugh v. Ohio, 235 F.3d 280, 284 (6th
Cir. 2000). Petitioner filed the pending petition on
September 25, 2017, with only three days remaining in the
limitations period. With so little time remaining in the
limitations period, dismissal of this case while Petitioner
exhausts his additional claims could result in a subsequent
petition being barred by the one-year statute of limitations.
Petitioner appears to assert that appellate counsel was
ineffective in failing to raise these claims on direct
review. Third, Petitioner's new claims allege the denial
of federally protected constitutional rights. Finally, the
Court finds no indication that Petitioner is engaging in
intentionally dilatory litigation tactics.
district court determines that a stay is appropriate pending
resolution 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. To ensure that Petitioner
does not delay in exhausting his state court remedies, the
Court imposes time limits within which he must proceed.
See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.
2002). Petitioner must also ask this Court to lift the stay
within sixty days of completing state court review. See
Id. “If the conditions of the stay are not met,
the stay may later be vacated nunc pro tunc as of
the date the stay was entered, and the petition may be
dismissed.” Id. (internal quotation omitted).
the Court GRANTS Petitioner's request for a stay. The
habeas petition is STAYED and further proceedings in this
matter are held in ABEYANCE. Petitioner shall file a motion
to lift the stay and an amended petition in this Court ...