United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION TO
STAY PROCEEDINGS AND DISMISSING PETITION WITHOUT
F. COX, U.S. DISTRICT JUDGE.
state prisoner Fatimah Inas McGee filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, asserting
she is being held in violation of her constitutional rights.
Petitioner was convicted in the Wayne County Circuit Court of
second-degree murder, Mich. Comp. Laws § 750.317. At the
same time she filed her petition, Petitioner filed a motion
to stay these proceedings so that she can raise unexhausted
claims in state court. The Court denies Petitioner's
motion for a stay and dismisses the petition without
prejudice. The Court also denies a certificate of
pleaded guilty in Wayne County Circuit Court to second-degree
murder. On October 14, 2014, she was sentenced to twenty to
forty years imprisonment. Petitioner filed an application for
leave to appeal in the Michigan Court of Appeals. The
Michigan Court of Appeals denied leave to appeal. People
v. McGee, No. 330275 (Mich. Ct. App. Feb. 12, 2016).
Petitioner then filed an application for leave to appeal with
the Michigan Supreme Court. The Michigan Supreme Court denied
leave to appeal. People v. McGee, 500 Mich. 866
(Mich. Sept. 27, 2016).
filed her federal habeas petition and motion for stay on
September 14, 2017.
seeks a stay in this matter while she exhausts her state
court remedies for additional claims which she did not
present in state court on direct appeal and which are not
presently raised in the petition. Petitioner has not shown
that she would lack sufficient time under 28 U.S.C. §
2244(d) to file a fully exhausted petition if her original
petition is dismissed without prejudice. The Court therefore
will deny the petitioner's motion.
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. §2254 must first exhaust all state remedies.
See O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (“state prisoners must give the state courts one
full fair opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process”). To satisfy this
requirement, the claims must be “fairly
presented” to the state courts, meaning that the
prisoner must have asserted both the factual and legal bases
for the claims in the state courts. See McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The claims
must also be presented to the state courts as federal
constitutional issues. See Koontz v. Glossa, 731
F.2d 365, 368 (6th Cir. 1984). While the exhaustion
requirement is not jurisdictional, a “strong
presumption” exists that a petitioner must exhaust
available state remedies before seeking federal habeas
review. See Granberry v. Greer, 481 U.S. 129, 131,
134-35 (1987). The burden is on the petitioner to prove
exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir.
habeas law provides that a habeas petitioner is only entitled
to relief if she can show that the state court adjudication
of her claims resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court of the United
States. See 28 U.S.C. § 2254(d). The state
courts must first be given a fair opportunity to rule upon
Petitioner's habeas claims before she can present those
claims to this Court. Otherwise, the Court cannot apply the
habeas standard of 28 U.S.C. § 2254. Furthermore, the
state court proceedings may result in the reversal of
Petitioner's convictions, thereby mooting the federal
questions presented. See Humphrey v. Scutt, No.
08-CV-14605, 2008 WL 4858091, *1 (E.D. Mich. Nov. 5, 2008)
(citing Sherwood v. Tomkins, 716 F.2d 632, 634 (9th
Cir.1983), and Woods v. Gilmore, 26 F.Supp.2d 1093,
1095 (C.D. Ill. 1998)). Non-prejudicial dismissal of the
petition is warranted under such circumstances.
federal district court has discretion to stay a habeas
petition to allow a petitioner to present unexhausted claims
to the state courts in the first instance and then return to
federal court on a perfected petition. See Rhines v.
Weber, 544 U.S. 269, 276 (2005). However, stay and
abeyance is available only in “limited
circumstances” such as when the one-year statute of
limitations applicable to federal habeas actions poses a
concern, and when the petitioner demonstrates “good
cause” for the failure to exhaust state court remedies
before proceeding in federal court and the unexhausted claims
are not “plainly meritless.” Id. at 277.
has not shown the need for a stay. Although she may be
concerned that the one-year statute of limitations applicable
to federal habeas actions, see 28 U.S.C. §
2244(d), poses a problem, it does not. The one-year period
does not begin to run until 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 September 27, 2016,
and the time for seeking a writ of certiorari with the United
States Supreme Court expired 90 days later - on December 26,
2016. Thus, approximately three months of the limitations
period remained when Petitioner filed this petition. While
the time in which this case has been pending in federal court
is not statutorily tolled, see Duncan v. Walker, 533
U.S. 167, 181-82 (2001) (a federal habeas petition is not an
“application for State post-conviction or other
collateral review” within the meaning of 28 U.S.C.
§ 2244(d)(2) so as to statutorily toll the limitations
period), such time may be equitably tolled. See, e.g.,
Johnson v. Warren, 344 F.Supp.2d 1081, 1088-89 (E.D.
Mich. 2004). The limitations period will also be tolled
during the time in which any additional properly filed
post-conviction or collateral actions are pending in the
state courts. See 28 U.S.C. § 2244(d)(2);
Carey v. Saffold, 536 U.S. 214, 219-221 (2002).
Petitioner has approximately three months to initiate review
in state court and, after completing state court review, to
federal court should she wish to do so.
even assuming that Petitioner has not engaged in
“intentionally dilatory tactics” and has shown
“good cause” for failing to fully exhaust issues
in the state courts before seeking federal habeas relief, she
has not shown the need for a stay.