United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S SECOND
REQUEST TO STAY 
J. MICHELSON, U.S. DISTRICT JUDGE
Armour again asks this Court to stay this already
three-year-old case so he can return to state court to file a
motion for relief from judgment (his third). The request will
2007, Armour was convicted of, among other things,
second-degree murder. After pursuing direct appeals and
post-conviction relief in the state courts without success,
Armour filed a petition for habeas corpus with this Court. It
appeared that the claims in Armour's petition were
exhausted. But Armour said that he had two unexhausted
avenues for attacking his conviction- one based on the
Michigan Supreme Court's decision in People v.
Lockridge, 870 N.W.2d 502 (Mich. 2015), and the other
based on the United States Supreme Court's decision in
Lafler v. Cooper, 132 S.Ct. 1376, 1385 (2012). So he
asked this Court to hold off on ruling on his petition while
he filed a second motion for relief from judgment in the
state trial court. The Court granted that request and stayed
this case. See Armour v. MacLaren, No. 15-10753,
2015 WL 9918195, at *2 (E.D. Mich. Dec. 4, 2015). The Court
contemplated that upon return to this Court, Armour would
file an amended petition containing the claims he had raised
originally along with the two newly-exhausted claims.
August (or late July) 2017, Armour asked this Court to resume
this habeas case. This Court reopened this case and granted
Armour extra time to file an amended petition. (R. 15.)
November 2017, Amour filed his amended petition. (R. 18.) It
appears that the amended petition has four claims (the
petition is not entirely clear on this point, more on this
has also informed this Court that his fourth claim is not
exhausted. In that claim, Armour alleges that he is
“actually innocent” and, in support, relies on an
August 2011 affidavit from Caserae Barnett. (See R.
18, PageID.1525.) Armour asks this Court “to dismiss,
without prejudice, his present petition for writ of habeas
corpus due to his failure to exhaust Habeas Claim IV . . .
or, alternatively, to hold the petition in abeyance pending
state-court exhaustion.” (R. 23, PageID.1842.)
Court will not again hold the petition in abeyance. Armour
has already filed two motions for relief judgment. And, with
two limited exceptions, “one and only one motion for
relief from judgment may be filed with regard to a
conviction.” Mich. Ct. R. 6.502(G)(1) (emphasis added).
The exceptions: the second motion for relief from judgment is
“based on a retroactive change in law that occurred
after the first motion for relief from judgment” or
based on “a claim of new evidence that was not
discovered before the first such motion.” Mich. Ct. R.
6.502(G)(2). Here, Armour says that he had the Barnett
affidavit when he filed his most-recent motion for relief
from judgment. (R. 23, PageID.1838.) Indeed, he apparently
attached it to that motion. (Id.) So the affidavit
is not “new evidence that was not discovered before
[the last] such motion.” See Mich. Ct. R.
6.502(G)(2). And a claim that someone else committed the
crime for which Armour was convicted is not based on a
“change in law that occurred after the [last] motion
for relief from judgment.” See Id. So, in all
likelihood, if Armour returned to state court, his third
motion for relief from judgment would not be accepted for
filing. Thus, even if the substance of the actual- innocence
claim is not “plainly meritless, ” Rhines v.
Weber, 544 U.S. 269, 277 (2005), it would not forward
the comity or federalism principles underlying exhaustion to
stay this case while Armour files a third motion for relief
event, Armour lacks “good cause” for a stay.
See Rhines, 544 U.S. at 277. Because Armour had
Barnett's affidavit at the time of his last motion for
relief from judgment, it is not obvious why Armour was unable
to raise his actual-innocence claim in that motion. And
Armour has provided no explanation for not raising the claim.
So a stay is not proper for this additional reason.
noted, as an alternative to a stay, Armour asks this Court to
dismiss his petition without prejudice. But dismissal would
likely result in any subsequent petition for habeas corpus
being barred by AEDPA's one-year statute of limitations.
of this potential statute-of-limitations problem, if Armour
would still like the Court to dismiss his petition without
prejudice, he must notify the Court of that desire by July
31, 2018. But, again, Armour is warned that dismissal, even
without prejudice, may result in the inability to seek
federal habeas corpus relief in the future.
July 31, 2018, Armour must list for the Court the claims in
his amended petition for which he is seeking habeas corpus
relief. Some claims in the amended petition seem to be
recited as part of the procedural history of this case and
not necessarily claims he would like this Court to address.
The Court is not granting leave to add new ...