United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PETITIONER'S MOTIONS
TO HOLD HIS HABEAS PETITION IN ABEYANCE [5, 6] AND CLOSING
THIS CASE FOR ADMINISTRATIVE PURPOSES
Page Hood Chief Judge, United States District Court.
case has come before the Court on petitioner Tarell
Friday's pro se petition for the writ of habeas
corpus under 28 U.S.C. § 2254 and Petitioner's
motions to hold the petition in abeyance. For the reasons set
forth below, the Court will grant Petitioner's motions
for a stay, hold the habeas petition in abeyance, and close
this case for administrative purposes.
alleges that, in December of 2016, Detroit police officers
arrested him while he was sitting on a couch in someone's
apartment. During a search of the apartment, the officers
discovered a firearm magazine and two men hiding in the
bedroom. Witnesses identified one of the two men in the
bedroom as the owner of the firearm magazine. Petitioner,
nevertheless, was detained, and because he was a state
parolee at the time, his parole officer charged him with five
counts of violating the conditions of parole. All five
charges, which involved threatening behavior and possessing a
firearm or firearm components, were dismissed for lack of
probable cause at a preliminary hearing held on December 29,
January 5, 2017, while Petitioner was still detained, his
parole officer charged him with the same five counts and one
new count of changing his address without the permission of
his field agent. The charges were dismissed for lack of
probable cause at a second preliminary hearing.
January 25, 2017, Petitioner's parole officer charged him
with three counts of violating the conditions of parole: (1)
possessing firearm ammunition; (2) possessing firearm
components; and (3) violating state law. Probable cause
apparently was established at the third preliminary hearing,
and after a parole revocation hearing, the Michigan Parole
Board revoked Petitioner's parole and ordered his
imprisonment for twenty-four months.
19, 2017, Petitioner filed his habeas corpus petition. He
maintains that, after two preliminary hearings where there
was insufficient evidence to support the charges, he should
have been reinstated on parole. He also claims that friction
between him and his parole agent may have influenced his
agent's judgment and that his continued detention in
state custody violates his right to due process.
25, 2017, the Court granted Petitioner leave to proceed
in forma pauperis, but before the Court could take
any further action in this case, Petitioner filed two
identical motions to hold his habeas petition in abeyance. He
appears to be saying that he wishes to pursue state remedies
for his claim before proceeding with his habeas petition.
doctrine of exhaustion of state remedies requires state
prisoners to present their claims to the state courts before
raising the claims in a federal habeas corpus petition.
See 28 U.S.C. § 2254(b)(1); O'Sullivan
v. Boerckel, 526 U.S. 838, 839 (1999). This requirement
is satisfied if the prisoner “invok[es] one complete
round of the State's established appellate review
process, ” including a petition for discretionary
review in the state supreme court “when that review is
part of the ordinary appellate review procedure in the
State.” O'Sullivan, 526 U.S. at 845, 847.
A federal district court ordinarily must dismiss a petition
containing any unexhausted claims. Rose v. Lundy,
455 U.S. 509, 510 (1982).
apparently has not exhausted any state remedies for his due
process claim, but he has an available state remedy to
exhaust. In Michigan, a state prisoner may challenge the
revocation of parole by filing a state complaint for the writ
of habeas corpus. Triplett v. Deputy Warden, 142
Mich.App. 774, 779; 371 N.W.2d 862, 865 (1985) (citing In
re Casella, 313 Mich. 393; 21 N.W.2d 175 (1946)).
“[T]here is no limitation on the time in which a
complaint for habeas corpus must be filed, as long as the
prisoner will be in custody at the time judgment becomes
effective.” Id. (citing In re Rankin,
330 Mich. 91; 47 N.W.2d 28 (1951)). “Orders of denial
in habeas corpus proceedings are not appealable as of right,
” but the prisoner may renew his claims by filing an
original complaint in the Michigan Court of Appeals.
Id., 142 Mich.App. at 779-80; 371 N.W.2d 866 (citing
Parshay v. Warden of Marquette Prison, 30 Mich.App.
556, 558, 186 N.W.2d 859 (1971)).
the Court could dismiss the petition while Petitioner pursues
these state remedies, a dismissal of this case could result
in a subsequent petition being barred by the one-year statute
of limitations applicable to habeas petitions filed under
§ 2254. See 28 U.S.C. § 2244(d). The
Court, therefore, believes the more prudent approach would be
to stay this case. Federal district courts ordinarily have
authority to grant stays, Rhines v. Weber, 544 U.S.
269, 276 (2005), and they “may stay a petition that
raises only unexhausted claims.” Mena v.
Long, 813 F.3d 907, 908 (9th Cir. 2016) (emphasis in
[I]t likely would be an abuse of discretion for a district
court to deny a stay and to dismiss a mixed petition if the
petitioner had good cause for his [or her] failure to
exhaust, his [or her] unexhausted claims are potentially
meritorious, and there is no indication that ...