United States District Court, E.D. Michigan, Southern Division
Patricia T. Morris United States Magistrate Judge
OPINION AND ORDER GRANTING PETITIONER'S MOTION TO
STAY, STAYING PROCEEDINGS [5, 6], AND ADMINISTRATIVELY
GERSHWIN A. DRAIN United States District Judge.
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Oussama Othman (“Petitioner”)
was convicted of second-degree murder following a jury trial
in the Wayne County Circuit Court and was sentenced in 2012
as a second habitual offender to 46 years and 10 months to
100 years imprisonment.
petition, filed by counsel, he raises claims concerning the
admission of other acts evidence and victim photographs, the
conduct of the prosecutor, the sufficiency of the evidence,
and the validity of his sentence. Respondent has filed an
answer to the petition contending that it should be denied
for lack of merit. The matter is now before the Court on
Petitioner's Motion to Stay the proceedings and hold his
habeas petition in abeyance so that he can investigate a
claim concerning the effectiveness of trial counsel relative
to a plea offer and potentially return to state court to
exhaust remedies on that claim. Respondent has no objection
to staying the case. The Court will accordingly GRANT the
Petitioner's Motion to Stay [5, 6].
Petitioner has demonstrated that he is entitled to a stay.
The 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 can show that the state court adjudication of his
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)(1). State courts must
have an opportunity to rule upon all of a petitioner's
claims before the petitioner can present those claims on
habeas review. Otherwise, a federal court is unable to apply
28 U.S.C. § 2254.
exhaustion requirement is met if a prisoner invokes one
complete round of a 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 “a
petitioner must assert both the legal and factual
basis for his or her claim.” Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing
McMeans, 228 F.3d at 681). 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); see also Welch v. Burke,
49 F.Supp.2d 992, 998 (E.D. Mich. 1999). And Petitioners must
prove exhaustion. Rust, 17 F.3d at 160.
Michigan Rules of Court provide a process through which a
petitioner may raise his unexhausted claim. For example,
first, a petitioner, through counsel, states that he
anticipates filing 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 claim should first be addressed to, and
considered by, the Michigan courts.
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. 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 applicable to
federal habeas actions poses a concern, and the petitioner
demonstrates “good cause” for the failure to
exhaust state court remedies before proceeding in federal
court, the unexhausted claims are not “plainly
meritless, ” and the petitioner has not engaged in
intentionally dilatory tactics. Id. at 277-78.
case, Petitioner shows the need for a stay. He wishes to
pursue a new claim which has not been 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 petition to allow
for further exhaustion of state remedies. Although Petitioner
does not specifically address the good cause element in his
motion, it appears that the ineffective assistance of counsel
claim involves newly-discovered evidence-the
non-communication of a plea offer- which may provide good
cause. The claim is not plainly meritless and there is no
evidence of intentional delay. Moreover, Respondent does not
object to the stay.
the Court shall stay the proceedings and hold the exhausted
claims in the current petition in abeyance pending
Petitioner's pursuit of state court remedies as to the
unexhausted claim. The Court makes no determination as to the
timeliness of any claims, or the procedural or substantive
merits of any claims.
the Court GRANTS Petitioner's Motion to
Stay the proceedings and hold the habeas petition in
abeyance. These proceedings are stayed. The stay is
conditioned on Petitioner investigating his claim and either
(1) returning to this Court to proceed on his current claims
by filing a motion to reopen, using the same caption and
cause number, within ninety (90) days of the filing date of
this Order, or (2) presenting the unexhausted claim to the
state courts by filing a motion for relief from judgment with