United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) AMENDING CAPTION, (2) HOLDING
IN ABEYANCE THE PETITION FOR WRIT OF HABEAS CORPUS AND (3)
ADMINISTRATIVELY CLOSING THE CASE
HONORABLE GEORGE CARAM STEEH UNITED STATES DISTRICT JUDGE.
Mengel, (“Petitioner”), presently on parole
supervision with the Michigan Parole Board through the Ionia
County Probation Office in Ionia, Michigan, filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his convictions for attempted
assault with intent to do great bodily harm, M.C.L.A. §
750.84, and attempted assault by strangulation, M.C.L.A.
filed a motion to stay the proceedings and to hold the
petition in abeyance to permit him to return to the state
courts to present additional claims that have not been
exhausted with the state courts and that are not being raised
in the current habeas petition.
reasons stated below, the Court amends the caption to reflect
the fact that petitioner is now on parole. The Court grants
petitioner's motion, holds the petition in abeyance, and
stays the proceedings under the terms outlined in this
opinion to permit petitioner to return to the state courts to
exhaust his additional claims. The Court administratively
closes the case.
pleaded nolo contendere in the Ionia County Circuit
Court. Petitioner was sentenced to nineteen months to five
years in prison. Petitioner's plea and sentence were
affirmed on appeal. People v. Mengel, No. 334224
(Mich. Ct. App. Oct. 10, 2016), lv. den. 500 Mich.
1001, 895 N.W.2d 179 (2017), reconsideration denied,
901 N.W.2d 389 (Mich. 2017).
filed his application for writ of habeas corpus, seeking
relief on the grounds that he raised in the state courts on
his direct appeal. Petitioner also filed a motion to hold the
habeas petition in abeyance to return to the state courts to
exhaust additional claims.
initial matter, petitioner named Lori Gidley, the warden of
the Central Michigan Correctional Facility, where petitioner
had been incarcerated, as the respondent. The Michigan
Department of Corrections' Offender Tracking Information
System (OTIS), which this Court is permitted to take judicial
notice of, See Ward v. Wolfenbarger, 323 F.Supp.2d
818, 821, n. 3 (E.D.Mich.2004), indicates that petitioner was
paroled on August 29, 2017. The only proper respondent in a
habeas case is the habeas petitioner's custodian, which
in the case of a paroled habeas petitioner would be the
parole board. Belser v. Michigan Parole Bd., No.
CIV. 06-CV-10714, 2006 WL 986956, at *1 (E.D. Mich. Apr. 12,
2006). The Court amends the caption to reflect that the
proper respondent is now the Michigan Parole Board.
federal district court has the authority to stay fully
exhausted federal habeas petitions pending the exhaustion of
additional 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 which prevents
a district court from dismissing a fully-exhausted habeas
petition because of the pendency of unexhausted claims in
state court, for a federal court to justify departing from
the “heavy obligation to exercise jurisdiction, ”
there must be a 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 while he returns to the state courts to exhaust. The
outright dismissal of the petition, albeit without prejudice,
might prevent petitioner from re-filing his habeas petition
after the exhaustion of these additional claims 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, as is the case
here, but a second, exhausted habeas petition could be time
barred by the AEDPA's statute of limitations. See
Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th Cir.
considerations merit holding the petition in abeyance while
petitioner exhaust his new claims in the state courts.
Specifically, “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 with state post-conviction proceedings, there is
a risk of wasting judicial resources if the state court might
grant relief on the unexhausted claim.” Id.
considerations support the granting of a stay. This Court is
currently unable 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 were to deny petitioner post-conviction relief,
this Court would still benefit from the state courts'
adjudication of these claims to determine 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 ...