United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER STAYING HABEAS PETITION AND HOLDING
CASE IN ABEYANCE
CARAM STEEH UNITED STATES DISTRICT JUDGE
Steven Anderson filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The petition
challenges his 2015 Wayne Circuit Court conviction for
first-degree murder, felon in possession of a firearm, and
commission of a felony with a firearm. The petition raises
four claims: 1) there was insufficient evidence presented at
trial to sustain Petitioner's convictions, 2) the
prosecutor committed misconduct at trial, 3) Petitioner was
denied the effective assistance of trial counsel, and 4)
Petitioner's appellate counsel was ineffective for
failing to raise additional allegations of ineffective
assistance of trial counsel.
asserts that his first three habeas claims were presented to
the Michigan Court of Appeals and Michigan Supreme Court
during his direct appeal. He asserts that his fourth claim
was only presented to the Michigan Supreme Court but not to
the Michigan Court of Appeals. The Michigan Supreme Court
denied relief on May 31, 2017. People v. Anderson,
No. 155056 (Mich. Sup. Ct. May 31, 2017). The habeas petition
was signed and dated on May 22, 2018.
petition for habeas corpus is filed the Court must undertake
a preliminary review to determine whether “it plainly
appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief
in the district court.” Rule 4, Rules Governing §
2254 Cases; see also 28 U.S.C. § 2243. If the Court
determines that the petitioner is not entitled to relief, the
Court must summarily dismiss the petition. McFarland v.
Scott, 512 U.S. 849, 856 (1994); Carson v.
Burke, 178 F.3d 434, 436 (6th Cir. 1999); Rule 4, Rules
Governing § 2254 Cases.
federal habeas petitioner must exhaust remedies available in
the state courts before filing his petition. 28 U.S.C. §
2254(b)(1); O'Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). The district court can and must raise the
exhaustion issue on its own when it clearly appears that
habeas claims have not been presented to the state courts.
See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.
1987). Exhaustion requires a petitioner to “fairly
present” federal claims so that state courts have a
“fair opportunity” to apply controlling legal
principles to the facts bearing upon a petitioner's
constitutional claim. See O'Sullivan, 526 U.S.
at 842; Picard v. Connor, 404 U.S. 270, 275-77
(1971). “[S]ubmission of new claims to a state's
highest court on discretionary review does not constitute
fair presentation of the claims to the state courts.”
Skinner v. McLemore, 425 Fed.Appx. 491, 494 (6th
Cir. 2011) (citing Castille v. Peoples, 489 U.S.
346, 349 (1989)).
prisoner is required to comply with the exhaustion
requirement as long as there is still a state-court procedure
available for him to do so. See Adams v. Holland,
330 F.3d 398, 401 (6th Cir. 2003). In this case, a procedure
to exhaust Petitioner's fourth claim is available.
Petitioner may file a motion for relief from judgment in the
Wayne County Circuit Court under Michigan Court Rule 6.502.
If that motion is denied, he may seek review by the Michigan
Court of Appeals and Michigan Supreme Court by filing an
application for leave to appeal. Mich. Ct. R. 6.509; Mich.
Ct. R. 7.203; Mich. Ct. R. 7.302.
a petition that contains unexhausted claims will be dismissed
without prejudice so that Petitioner can present his
unexhausted claims to the state courts and then return to
federal court on a perfected petition. Rust v. Zent,
17 F.3d 155, 160 (6th Cir. 1994). However, to avoid problems
with the one year statute of limitations contained in 28
U.S.C. § 2244(d)(1), a federal court may opt instead 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
(2005). Here, Petitioner filed his habeas petition with about
only three months remaining on the statute of limitations.
Accordingly, a stay of proceedings is warranted rather than a
dismissal without prejudice.
Court will therefore stay the petition for writ of habeas
corpus and hold the case in abeyance. Before proceeding in
federal court, Petitioner must exhaust his fourth habeas
claim in the state courts by filing a motion for relief from
judgment in the trial court within 60 days of this order, and
then if it is denied, he must file timely appeals in the
Michigan Court of Appeals and Michigan Supreme Court. See
e.g. Wagner v. Smith, 581 F.3d 410, 419 (6th Cir. 2009).
Further, he must ask this Court to lift the stay within 60
days of exhausting his state court remedies. Failure to
comply with any of the conditions of the stay could result in
the dismissal of the habeas petition. Calhoun v.
Bergh, 769 F.3d 409, 411 (6th Cir. 2014).
has another option. Petitioner may delete his unexhausted
fourth claim and proceed only on his exhausted first three
claims (those that were presented to the Michigan Court of
Appeals on direct appeal). If Petitioner wishes to exercise
this option, he may move to re-open this case and amend his
petition to proceed only on the exhausted claims within 30
days of the filing date of this order. The Court makes no
determination as to the merits of any of Petitioner's
Certificate of Appealability
Petitioner may appeal this decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a);
Fed. R. App. P. 22(b). When a district court denies a habeas
claim on procedural grounds without addressing the merits, a
certificate of appealability should issue if it is shown that
jurists of reason would find it debatable whether the
petitioner states a valid claim of the denial of a
constitutional right, and that jurists of reason would find
it debatable whether the court was correct in its procedural
ruling. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). Reasonable jurists could not debate whether the Court
was correct in its procedural ruling. Accordingly, the Court
will deny a certificate of appealability. The Court also will
deny Petitioner leave to proceed in forma pauperis on appeal
as an appeal cannot be taken in good faith. See Fed. R. App.
ORDERED that the petition for writ of habeas
corpus is STAYED and this case is
HELD IN ABEYANCE. This order is conditioned
upon Petitioner filing his motion for relief from judgment
within 60 days of this order and then filing a motion to
reopen the case and an amended petition-using the case number
already assigned to ...