United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER (1) GRANTING THE MOTION TO STAY
(DKT. # 8), (2) HOLDING IN ABEYANCE THE PETITION FOR WRIT OF
HABEAS CORPUS, AND (3) ADMINISTRATIVELY CLOSING THE
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
Javon Davison, (“petitioner”), confined at the
Brooks Correctional Facility in Muskegon Heights, Michigan,
seeks the issuance of a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his pro se application,
petitioner challenges his conviction for assault with intent
to murder, Mich. Comp. Laws § 750.83; and assault by
strangulation, Mich. Comp. Laws § 750.84(1)(b).
has filed a motion to hold the petition in abeyance during
the pendency of his appeal from the denial of his
re-sentencing in the state trial court following a remand by
the Michigan Court of Appeals. The Court shall hold the
petition in abeyance and stay the proceedings under the terms
outlined in this opinion. Accordingly, the Court will
administratively close the case.
was convicted by a jury in the Genesee County Circuit Court.
filed an appeal of right, raising claims that are included in
his current habeas petition. The Michigan Court of Appeals
affirmed his conviction, but remanded the case to the Genesee
County Circuit Court for the judge to determine whether
petitioner should be re-sentenced, in light of the Michigan
Supreme Court's decision in People v. Lockridge,
498 Mich. 358; 870 N.W.2d 502 (Mich. 2015), which held that
Michigan's Sentencing Guidelines scheme violates the
Sixth Amendment right to a jury trial. People v.
Davison, No. 324479, 2016 WL 1276433 (Mich. Ct. App.
Mar. 31, 2016), lv. den. 500 Mich. 868, 885 N.W.2d
trial judge on remand denied petitioner's request to be
re-sentenced. Petitioner has filed an appeal from the denial
of his request to be re-sentenced with the Michigan Court of
Appeals, which remains pending with that court. See
People v. Davison, No. 339586 (Mich. Ct. App.).
filed a petition for writ of habeas corpus, seeking habeas
relief on the four claims that he raised before the Michigan
Court of Appeals on his appeal of right.
has filed a motion to stay the proceedings and hold the
petition in abeyance pending his appeal from the trial
court's denial of his request to be resentenced.
federal district court has the power to hold in abeyance
fully exhausted federal habeas petitions pending the
exhaustion of other 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); Thomas v.
Stoddard, 89 F.Supp.3d 937, 943 (E.D. Mich. 2015).
Although there is no rule that a district court can never
dismiss a fully-exhausted habeas petition because of the
pendency of unexhausted claims in state court, in order for a
federal court to justify departing from the “heavy
obligation to exercise jurisdiction, ” there must be a
compelling reason to choose 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 during the pendency of petitioner's appeal from
the denial of his request for re-sentencing. In so doing,
“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)). Further,
“[I]f this Court were to proceed in parallel”
while petitioner was pursuing his re-sentencing appeal,
“there is a risk of wasting judicial resources if the
state court might grant relief on the unexhausted
claim.” Id. Respondent will not be prejudiced
by a stay, 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. § 2244(b)(2)'s
second-or-successive-petition 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). This
Court imposes time limits within which petitioner must
proceed with his re-sentencing proceedings. See Palmer v.
Carlton, 276 F.3d 777, 781 (6th Cir. 2002).
Court holds the petition in abeyance during the pendency of
petitioner's appeal from the denial of his re-sentencing
in the state courts. This tolling is conditioned upon
petitioner returning to federal court within ninety (90) days
after the completion of any re-sentencing appeal in the