United States District Court, E.D. Michigan, Southern Division
CEDRIC J. SIMPSON, Petitioner,
JOSEPH BARRETT, Respondent.
OPINION AND ORDER GRANTING MOTION TO STAY PETITION
FOR WRIT OF HABEAS CORPUS [ECF NO. 7]
V. PARKER U.S. DISTRICT JUDGE.
a habeas case brought pursuant to 28 U.S.C. § 2254.
Petitioner Cedric J. Simpson (“Petitioner”) was
convicted after he pled guilty in the Circuit Court for
Oakland, Michigan, to surveillance of an unclothed person
(second or subsequent offense), in violation of Michigan
Compiled Laws § 750.539j(2)(a)(ii). The trial court
sentenced Petitioner to a term of 5 to 10 years'
imprisonment. Petitioner raises one claim in his habeas
application: Petitioner's sentence was based on
inaccurate information. Before the Court is Petitioner's
motion to stay the petition so that he can return to the
state courts to exhaust his remedies with respect to three
additional claims. For the reasons that follow, the Court is
granting the motion.
filed a direct appeal in the Michigan Court of Appeals
following his conviction and sentence. His application for
leave to appeal raised three claims: (1) the trial court
erred in requiring Petitioner to register as a Tier III sex
offender; (2) the sentence was based on inaccurate
information; and (3) Petitioner was erroneously ordered to
reimburse the trial court for his stand-by counsel.
(See Pet. at 2, ECF No. 1 at Pg ID 2.) The Michigan
Court of Appeals granted leave to appeal and, in an
unpublished opinion, remanded the case to the trial court to
alter the judgment of sentence to reflect that Petitioner was
a Tier II sex offender. People v. Simpson, No.
324889, 2016 WL 1072209 (Mich. Ct. App. March 17, 2016). The
state appellate court rejected Petitioner's other claims.
subsequently filed an application for leave to appeal in the
Michigan Supreme Court, raising the claims rejected by the
Michigan Court of Appeals. On October 26, 2016, the Michigan
Supreme Court denied the application by standard order.
People v. Simpson, 886 N.W.2d 435 (Mich. 2016).
the ninety-day period for Petitioner to seek a petition for
writ of certiorari with the United States Supreme Court
expired with Petitioner not seeking the writ, the one-year
statute of limitations for Petitioner to file his federal
habeas petition started running. See Jimenez v.
Quarterman, 555 U.S. 113, 120 (2009) (a conviction
becomes final for purposes of the habeas statute of
limitations when the time for filing a certiorari petition
expires). The ninety-days expired on January 25, 2017.
filed the present federal habeas petition on October 10,
from the exhausted sentencing claim raised in the habeas
petition, Petitioner asserts that he wishes to raise three
additional claims that were not presented to the state
courts: (1) Petitioner's guilty plea was involuntarily
entered; (2) Petitioner was denied the effective assistance
of appellate counsel; and (3) application of Michigan's
Sex Offender Registry law to his case violates his rights
under the Ex Post Facto Clause.
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. § 2254 must first exhaust his state court
remedies. See O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999); Rust v. Zent, 17 F.3d 155, 160 (6th
Cir. 1994). 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);
see also Williams v. Anderson, 460 F.3d 789, 806
(6th Cir. 2006) (citing McMeans).
Michigan prisoner must properly present each issue he seeks
to raise in a federal habeas proceeding to both the Michigan
Court of Appeals and the Michigan Supreme Court to satisfy
the exhaustion requirement. See Welch v. Burke, 49
F.Supp.2d 992, 998 (E.D. Mich. 1999); see also Hafley v.
Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
federal district court has discretion to stay a petition
raising unexhausted claims to allow a petitioner to present
those claims to the state courts and then return to federal
court on a perfected petition. See Rhines v. Weber,
544 U.S. 269, 276 (2005). Stay and abeyance is available only
in limited circumstances such as when the one-year statute of
limitations poses a concern and the petitioner demonstrates
good cause for the failure to exhaust state remedies before
proceeding in federal court, the petitioner has not engaged
in intentionally dilatory litigation tactics, and the
unexhausted claims are not plainly meritless. Id. at
pending case, Petitioner's unexhausted claims do not
appear to be plainly meritless, and he does not appear to be
engaged in dilatory litigation tactics. For good cause for
failing to raise his unexhausted claims earlier, Petitioner
asserts that his appellate counsel was ineffective for
failing to include them during his direct appeal proceeding.
ten months of the one-year statute of limitations had elapsed
by the time Petitioner filed the instant petition. As such,
outright dismissal of this case while Petitioner completes
exhaustion of his claims could result in the one-year statute
of limitations barring subsequent petition. The Court
therefore concludes that it is not an abuse of discretion ...