United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION
FOR WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE
J. TARNOW UNITED STATES DISTRICT JUDGE
Kersey, (“Petitioner”), confined at the Bellamy
Creek Correctional Facility in Ionia, Michigan, filed a
pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254, challenging his conviction for
armed robbery, Mich.
Laws § 750.529, conspiracy to commit armed robbery,
Mich. Comp. Laws § 750.157a, assault with intent to do
great bodily harm, Mich. Comp. Laws § 750.84, conspiracy
to commit assault with intent to do great bodily harm, Mich.
Laws § 750.157a, carrying a dangerous weapon with
unlawful intent, Mich. Comp. Laws § 750.226, carrying a
concealed weapon, Mich. Comp. Laws § 750.227, felon in
possession of a firearm, Mich. Comp. Laws § 750.224; and
felony-firearm, Mich. Comp. Laws § 750.227b. For the
reasons stated below, the petition is held in abeyance under
the terms outlined in the opinion to permit petitioner to
complete his post-conviction proceedings in the state courts
to exhaust several claims. The Court will also
administratively close the case.
was convicted following a jury trial in the Wayne County
conviction was affirmed on appeal. People v. Kersey,
No. 324674, 2016 WL 1230445 (Mich. Ct. App. Mar. 29, 2016),
lv. den. 500 Mich. 896, 887 N.W.2d 197
filed a post-conviction motion for relief from judgment, in
which he raised what make up his second through sixth claims
in his habeas petition. The judge denied the motion on
December 5, 2017. Petitioner has filed an application for
leave to appeal the denial of this motion to the Michigan
Court of Appeals, which remains pending before that court.
has now filed a petition for writ of habeas corpus.
Petitioner also filed a motion to hold the petition in
abeyance pending the completion of his post-conviction
general rule, a state prisoner seeking federal habeas relief
must first exhaust his or her available state court remedies
before seeking habeas relief in federal court. 28 U.S.C.
§ 2254(b) and(c); Picard v. Connor, 404 U.S.
270, 275-78 (1971); Hannah v. Conley, 49 F.3d 1193,
1195 (6th Cir. 1995). A petition for a writ of habeas corpus
filed by a state prisoner shall not be granted unless the
petitioner has exhausted his or her available state court
remedies, there is an absence of available state corrective
process, or circumstances exist that would make such process
ineffective to protect the petitioner's rights. See
Turner v. Bagley, 401 F.3d 718, 724 (6th Cir. 2005). A
prisoner confined pursuant to a Michigan conviction must
raise each habeas claim in both the Michigan Court of Appeals
and in the Michigan Supreme Court before seeking federal
habeas corpus relief. Hafley v. Sowders, 902 F.2d
480, 483 (6th Cir. 1990). Federal district courts must
dismiss mixed habeas petitions which contain both exhausted
and unexhausted claims. See Pliler v. Ford, 542 U.S.
225, 230 (2004)(citing Rose v. Lundy, 455 U.S. 509,
510, 522 (1982)).
filed a post-conviction motion for relief from judgment,
which was denied by the state trial court. Petitioner's
post-conviction appeal from the denial of that motion remains
pending in the Michigan Court of Appeals. The general rule is
that a habeas petition should be denied on exhaustion grounds
where the petitioner's state post-conviction motion
remains pending in the state courts. See e.g. Juliano v.
Cardwell, 432 F.2d 1051, 1051 (6th Cir. 1970). Denial of
a motion for relief from judgment is reviewable by the
Michigan Court of Appeals and the Michigan Supreme Court upon
the filing of an application for leave to appeal. M.C.R.
6.509; M.C.R. 7.203; M.C.R. 7.302. See Wagner v.
Smith, 581 F.3d 410, 414 (6th Cir. 2009). Where a habeas
petitioner has an opportunity under state law to file an
appeal following the state trial court's denial of his or
her state post-conviction motion, the petitioner has failed
to exhaust state court remedies. See Cox v.
Cardwell, 464 F.2d 639, 644-45 (6th Cir. 1972).
Petitioner's second through sixth claims are unexhausted.
habeas petitioner who is concerned about the possible effects
of his or her state post-conviction filings on the
Antiterrorism and Effective Death Penalty Act's statute
of limitations could file a “protective” petition
in federal court, as petitioner has done, and then request
that the petition to be stayed or held in abeyance pending
the exhaustion of state post-conviction remedies. See
Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)(citing
Rhines v. Weber, 544 U.S. 269 (2005)). A federal
court may stay a federal habeas petition and hold further
proceedings in abeyance pending resolution of state court
post-conviction proceedings, if there is good cause for
failure to exhaust and the unexhausted claims are not
“plainly meritless.” Rhines, 544 U.S. at
claims are not “plainly meritless.” Further,
petitioner argues that he did not previously raise these
claims in the state courts due to the ineffective assistance
of appellate counsel. Wagner, 581 F.3d at 419, nn. 4
and 5. Finally, it does not appear that petitioner has
engaged in “intentionally dilatory tactics.” When
a district court determines that a stay is appropriate
pending exhaustion of state court remedies, the district
court “should place reasonable time limits on a
petitioner's trip to state court and back.”
Rhines, 544 U.S. at 278. To ensure that petitioner
does not delay in exhausting his state court remedies, the
Court imposes upon petitioner time limits within which he
must proceed. Petitioner has already filed a post-conviction
motion for relief from judgment with the state courts.
Petitioner must ask this Court to lift the stay within ninety
days of exhausting his state court remedies. See Palmer