United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PETITIONER'S REQUEST FOR COPIES OF
COURT DOCUMENTS AND TO HOLD HIS HABEAS PETITION IN ABEYANCE
MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE
Rodney Clarence Kennard is a state prisoner in the custody of
the Michigan Department of Corrections. On July 5, 2016,
Kennard filed a pro se petition for a writ of habeas
corpus in this Court pursuant to 28 U.S.C. § 2254.
(See ECF #1). Kennard challenges his state-court
conviction for first-degree, premeditated murder, Mich. Comp.
Laws § 750.316(1)(a).
petition, Kennard contends that: (1) he was denied due
process of law by the lengthy delay between the offense and
his arrest; (2) the state trial court deprived him of his
right to present a defense when that court denied his request
for funds to hire experts, and trial counsel rendered
ineffective assistance when she failed to renew that request;
(3) the trial court denied him a fair trial when it refused
to grant him and his co-defendant separate trials or separate
juries; (4) the trial court abused its discretion when it
ruled that the prosecution had shown due diligence in
attempting to produce a witness; (5) the trial court violated
his right to confront his accuser when it admitted hearsay in
the form of a witness's testimony from the preliminary
examination; (6) the cumulative effect of errors at his trial
deprived him of due process; (7) trial counsel rendered
ineffective assistance when she failed to present impeachment
evidence and failed to recall a prosecution witness; (8) the
prosecutor deprived him of due process and a fair trial by
introducing false testimony at trial; (9) the trial court
abused its discretion and deprived him of his right to
confront witnesses when the court limited his questioning of
an important prosecution witness; (10) the trial court should
have granted a mistrial due to the jury's inconsistent
verdict; and (11) he was denied counsel at a critical stage
of the proceedings when counsel refused to investigate the
case and object to the prosecutor's misconduct and the
trial court's failure to control the proceedings.
(See ECF #1.)
argues that Kennard has not exhausted his state court
remedies for the second half of his second claim and his
eleventh claim. (See Ans. to Pet., ECF #10.) On May
10, 2018, Kennard filed a request in which he asked the Court
to stay consideration of his petition while he returns to
state court and pursues post-conviction review with respect
to his second and eleventh claims for relief. (See
ECF #20.) Kennard also asked the Court to send him copies of
certain documents in this case. (See id.)
prisoner who seeks federal habeas relief must first exhaust
his available state court remedies before raising a claim in
federal court. See 28 U.S.C. § 2254(b) and (c).
See also Picard v. Connor, 404 U.S. 270, 275-78
(1971). A federal court has discretion to stay a federal
habeas petition and hold further proceedings in abeyance
pending resolution of state court post-conviction
proceedings. See Rhines v. Weber, 544 U.S. 269, 278
the petitioner exhausts his state remedies, the federal court
may lift its stay and allow the petitioner to proceed in
federal court. Id. at 275-76. The Court concludes
that such a stay is warranted here.
IT IS HEREBY ORDERED that Kennard's
request to hold his habeas petition in abeyance while he
pursues state remedies for his unexhausted claims (ECF #20)
is GRANTED. This stay is conditioned upon
Kennard presenting his unexhausted claims to the state courts
by filing a motion for relief from judgment in the Wayne
Circuit Court by no later than August 31,
2018. See Hill v. Anderson, 300 F.3d 679,
683 (6th Cir. 2002) (discussing procedure). If that court
denies Kennard's motion, he must file timely appeals in
the Michigan Court of Appeals and the Michigan Supreme Court.
See Id. The stay is further conditioned on
Kennard's return to this Court, with a motion to re-open
and amend his petition, using the same caption and case
number included at the top of this Order, within 60
days of fully exhausting his state court remedies.
If Kennard fails to comply with any of the conditions
described in this paragraph, the Court may dismiss his
petition and/or rule only on his currently-exhausted claims.
See Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir.
IS FURTHER ORDERED that the Clerk of the Court shall
close this case for administrative purposes only. Nothing in
this Order or the related docket entry shall be construed as
an adjudication of any of Kennard's claims. See Sitto
v. Bock, 207 F.Supp.2d 668, 677 (E.D. Mich. 2002).
because Kennard alleges that he is indigent and that the
Michigan Department of Corrections lost or destroyed his file
for this case, IT IS FURTHER ORDERED that
the Clerk of the Court shall mail the following documents to
Kennard at no expense to him: the Petition (ECF #1); the
Response to the Petition (ECF #7); Kennard's Reply to the
Response (ECF #10); the Motion to Appoint Counsel (ECF #11);
the Motion for Oral Argument (ECF #12); the Order of
Disqualification and Reassignment (ECF #14); the Motion for
an Evidentiary Hearing (ECF #15); the Order denying the
motions for appointment of counsel and for oral argument (ECF
#16); the Response to the Motion for an Evidentiary Hearing
(ECF #17); and the Order denying Petitioner's Motion for
an Evidentiary Hearing (ECF #18).
IS SO ORDERED.
hereby certify that a copy of the foregoing document was
served upon the parties and/or counsel of record on June 4,