United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PETITIONER'S MOTION TO
HOLD THE HABEAS PETITION IN ABEYANCE, STAYING THE
PROCEEDINGS, DENYING PETITIONER'S MOTION FOR EQUITABLE
TOLLING, AND ADMINISTRATIVELY CLOSING THE CASE
J. TARNOW, UNITED STATES DISTRICT JUDGE
prisoner Stephen Demarsha White (“Petitioner”)
has filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his state court
convictions which is currently pending before this Court. In
his petition, he raises 11 claims concerning newly-discovered
recantation evidence, the conduct of the prosecutor, the
trial court's denial of a new trial motion, his rejection
of a plea bargain based upon counsel's advice, his rights
to a public trial and to be present during jury voir dire,
the impartiality of the trial judge, and the effectiveness of
trial and appellate counsel. This matter is before the Court
on Petitioner's motion to hold his petition in abeyance
so that he may return to the state courts on collateral
review and properly exhaust several of his habeas claims, as
well as his motion for equitable tolling.
doctrine of exhaustion of state remedies requires state
prisoners to “fairly present” their claims as
federal constitutional issues in the state courts before
raising those claims in a federal habeas petition. 28 U.S.C.
§ 2254(b)(1)(A) and (c); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999); McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000); Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994). Federal law
provides that a habeas petitioner is only entitled to relief
if he or she can show that the state court adjudication of
his or 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. 28 U.S.C. § 2254(d). The state courts
must be given an opportunity to rule upon all of a
petitioner's claims before they can be presented on
federal habeas review. Otherwise, the Court is unable to
apply the standard found at 28 U.S.C. § 2254.
exhaustion requirement is met if a petitioner invokes one
complete round of the state's established appellate
review process. O'Sullivan, 526 U.S. at 845. To
satisfy the exhaustion requirement, the claims must be
“fairly presented” to the state courts, meaning
that the petitioner must have asserted both the factual and
legal bases for the claims in the state courts.
McMeans, 228 F.3d at 681; see also Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing
McMeans). The claims must also be presented to the
state courts as federal constitutional issues. Koontz v.
Glossa, 731 F.2d 365, 368 (6th Cir. 1984). For a
Michigan prisoner, each issue must be presented to both the
Michigan Court of Appeals and the Michigan Supreme Court.
Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.
1990); Welch v. Burke, 49 F.Supp.2d 992, 998 (E.D.
Mich. 1999). The burden is on the petitioner to prove
exhaustion. Rust, 17 F.3d at 160.
indicates that he did not properly exhaust six of his habeas
claims in the state courts before instituting this federal
action. The Michigan Rules of Court provide a process through
which Petitioner may raise his unexhausted claims. In fact,
Petitioner states that he intends to file a motion for relief
from judgment in the state trial court pursuant to Michigan
Court Rule 6.500 et seq. He may then appeal the trial
court's decision to the state appellate courts as
necessary. The unexhausted claims should first be addressed
to, and considered by, the Michigan courts.
federal district court has discretion to stay a mixed habeas
petition, containing both exhausted and unexhausted claims,
to allow a petitioner to present unexhausted 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 when 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 277.
shows the need for a stay. He wishes to pursue claims which
have not been properly presented to the state courts. The
one-year limitations period applicable to federal habeas
actions, 28 U.S.C. § 2244(d)(1), could pose a problem if
the Court were to dismiss the current petition to allow for
further exhaustion of state remedies. Additionally,
Petitioner alleges that appellate counsel was ineffective for
failing to pursue the claims on direct appeal, which may
provide good cause. Lastly, the unexhausted claims do not
appear to be plainly meritless and there is no evidence of
intentional delay. Therefore, the Court shall hold the
unexhausted claims in the current petition in abeyance and
stay the proceedings pending Petitioner's exhaustion of
state court remedies as to the unexhausted claims. The Court
make no determination as to the timeliness of his claims or
the procedural or substantive merits of his claims at this
the Court GRANTS Petitioner's motion to
hold the habeas petition in abeyance and
STAYS the proceedings. The stay is
conditioned on Petitioner presenting the unexhausted claims
to the state courts within 30 days of the
receipt of this order by filing a motion for relief from
judgment with the trial court. See Hill v. Anderson,
300 F.3d 679, 683 (6th Cir. 2002) (discussing procedure). The
stay is further conditioned on Petitioner's return to
this Court with a motion to reopen and amend the habeas
petition, using the same caption and case number, within
30 days of fully exhausting state remedies.
See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.
2002) (adopting approach taken in Zarvela v. Artuz,
254 F.3d 374, 381 (2d Cir. 2001)). Should Petitioner fail to
comply with these conditions, the case may be dismissed.
Given this determination, the Court DENIES
Petitioner's motion for equitable tolling as moot. This
denial is without prejudice to the parties raising any
timeliness issues if/when the stay is lifted. Lastly, the
Court CLOSES the case for administrative
purposes pending compliance with the foregoing conditions.
IS SO ORDERED.
Petitioner states that he presented six
of his habeas claims to the Michigan Supreme Court, but did
not present them to the state trial court or the Michigan
Court of Appeals. The presentation of those claims to the
Michigan Supreme Court on discretionary review without first
presenting them to the lower courts does not satisfy the