United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER HOLDING THE PETITION FOR WRIT OF
HABEAS CORPUS IN ABEYANCE AND ADMINISTRATIVELY CLOSING THE
PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE
Anthony Durant, (“Petitioner”), confined at the
Michigan Reformatory in Ionia, Michigan, filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his convictions for
second-degree murder, armed robbery, and felony firearm. The
petition is subject to dismissal because none of the claims
have been exhausted with the state courts. In lieu
of dismissing the petition, the Court holds the petition in
abeyance and stays the proceedings under the terms outlined
below in the opinion to permit petitioner to return to the
state courts to exhaust his claims, failing which the
petition shall be dismissed without prejudice. The Court
administratively closes the case.
was originally charged with first-degree murder, armed
robbery, and felony-firearm. Petitioner pleaded guilty to a
reduced charge of second-degree murder and to the other two
charges in the Wayne County Circuit Court. On January 15,
2017, petitioner was sentenced to 20 to 40 years in prison on
the second-degree murder conviction and received lesser
sentences on the other charges.
March 2, 2018, petitioner filed a petition for writ of habeas
corpus. Petitioner seeks habeas relief on several
grounds. By his own admission, petitioner did not file an
appeal with the Michigan appellate courts and has yet to
present any of these claims to the Michigan courts either on
direct appeal or on state post-conviction review.
petition is subject to dismissal, because petitioner has not
exhausted his claims with the state courts.
prisoner seeking federal habeas relief must first exhaust his
or her available state court remedies before raising a claim
in federal court. 28 U.S.C. § 2254(b) and (c). See
Picard v. Connor, 404 U.S. 270, 275-78 (1971). Although
exhaustion is not a jurisdictional matter, “it is a
threshold question that must be resolved” before a
federal court may adjudicate the merits of any claim
contained in a habeas petition. See Wagner v. Smith,
581 F.3d 410, 415 (6th Cir. 2009). Therefore, each claim must
be reviewed by a federal court for exhaustion before any
claim may be reviewed on the merits by a federal court.
Id. Federal district courts must dismiss habeas
petitions which contain unexhausted claims. See Pliler v.
Ford, 542 U.S. 225, 230 (2004)(citing Rose v.
Lundy, 455 U.S. 509, 510, 522 (1982)). The failure to
exhaust state court remedies may be raised sua
sponte by a federal court. Benoit v. Bock, 237
F.Supp.2d 804, 806 (E.D. Mich. 2003); 28 U.S.C. §
habeas petitioner has the burden of proving that he or she
has exhausted his or her state court remedies. See Rust
v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
The instant petition is subject to dismissal, because
petitioner failed to allege or indicate that he exhausted
available state court remedies. See Peralta v.
Leavitt, 56 F. App'x. 534, 535 (2nd Cir. 2003);
See also Fast v. Wead, 509 F.Supp. 744, 746 (N.D.
exhaustion doctrine, in the context of habeas cases, turns
upon whether there are available state court procedures for a
habeas petitioner to exhaust his or her claims. See Adams
v. Holland, 330 F.3d 398, 401 (6th Cir. 2003). Under
M.C.R. 7.205(F)(3), petitioner had six months to file a
delayed application for leave to appeal with the Michigan
Court of Appeals. Because petitioner was sentenced on January
15, 2017, the time for him to seek direct appellate review of
his case has expired. This does not mean, however, that
petitioner does not have an available state court remedy with
which to exhaust his claims.
could exhaust his claims regarding his state court conviction
by filing a post-conviction motion for relief from judgment
under Michigan Court Rule 6.500 with the Wayne County Circuit
Court. See Wagner v. Smith, 581 F.3d at 419. Under
Michigan law, a defendant's criminal conviction is
reviewable in accordance with M.C.R. 6.500 et. seq.
when the time limitation for filing an application for leave
to appeal has expired. See People v. Caston, 228
Mich.App. 291, 297-98; 579 N.W.2d 368 (1998). 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. Nasr v. Stegall, 978
F.Supp. 714, 717 (E.D. Mich. 1997).
in fact, is required to appeal the denial of his
post-conviction motion to the Michigan Court of Appeals and
the Michigan Supreme Court in order to properly exhaust any
claims that he would raise in his post-conviction motion.
See e.g. Mohn v. Bock, 208 F.Supp.2d 796, 800 (E.D.
Mich. 2002). Petitioner can exhaust his claims by filing a
post-conviction motion for relief from judgment; any habeas
challenge to his state court convictions is thus premature.
See e.g. Enochs v. Walton, No. 2:12-CV-11507, 2012
WL 1401729, at *5 (E.D. Mich. Apr. 19, 2012).
Court is concerned that by dismissing the current petition,
albeit without prejudice, there is the danger that petitioner
might be prevented under the one year statute of limitations
contained within 28 U.S.C. § 2244(d)(1) from re-filing a
petition for writ of habeas corpus following the exhaustion
of his claims in the state courts.
habeas petitioner who is concerned about the possible effects
of his or her state post-conviction filings on the
AEDPA's statute of limitations could file a
“protective” petition in federal court and then
ask for the petition to be 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