United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PETITIONER'S MOTION TO
STAY AND ABEY HABEAS PETITION  AND GRANTING
RESPONDENT'S MOTION FOR LEAVE TO FILE RESPONSIVE PLEADING
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
April 9, 2018, Petitioner Christopher Remington Lawrence
filed his pro se petition for a writ of habeas corpus under
28 U.S.C. § 2254. ECF 1. The petition challenges
Petitioner's convictions and sentences for: (1) assault
with intent to commit murder, Mich. Comp. Laws § 750.83,
(2) discharge of a firearm from a motor vehicle, causing
physical injury, Mich. Comp. Laws § 750.234a(1)(b), (3)
carrying a dangerous weapon with unlawful intent, Mich. Comp.
Laws § 750.226, (4) carrying a concealed weapon, Mich.
Comp. Laws § 750.227, and (5) possession of a firearm
during the commission of a felony, Mich. Comp. Laws
§750.227b. See id.; ECF 10, PgID 70-71.
alleges that he is entitled to the writ of habeas corpus
because (1) the evidence at trial was insufficient to support
his assault conviction and (2) the trial court erred when
scoring offense variables three and twelve of the Michigan
sentencing guidelines. See ECF 1, PgID 5. The trial court
sentenced Petitioner to a term of eighteen to thirty years in
prison for the assault and to lesser terms for the remaining
convictions. Id. at 3. The Michigan Court of Appeals
affirmed Petitioner's convictions and sentences in an
unpublished decision, see People v. Lawrence, No.
330762, 2017 WL 2664788 (Mich. Ct. App. June 20, 2017), and
on January 3, 2018, the Michigan Supreme Court denied leave
to appeal. See People v. Lawrence, 501 Mich. 951
October 9, 2018, Petitioner filed a motion to stay this case
and to hold the petition in abeyance while he exhausts state
remedies for three new claims. ECF 8. The new claims assert
that Petitioner was denied his rights to (1) counsel of his
choice, (2) presentation of a critical defense witness at
trial, and (3) effective assistance of counsel at trial and
on appeal. Id. at 56. Because Petitioner did not
include the claims he now seeks to exhaust in his petition,
the Court treats Petitioner's motion to stay as a motion
to amend his petition to add the new claims and then to stay
the proceeding to exhaust the new claims.
pending before the Court is Respondent's motion for leave
to file its answer instanter. Respondent filed its answer on
October 16, 2018. ECF 10. Respondent argues that
Petitioner's first claim is meritless and that his second
claim is both meritless and not cognizable on habeas review.
Id. In its motion to file the answer instanter,
Respondent asserts that it inadvertently failed to file its
answer to the petition on October 15, 2018. ECF 9.
reasons set forth below, the Court will grant
Petitioner's motion for a stay and the State's motion
to file its answer instanter.
Petitioner's Motion to Stay
prisoners must give the state courts an opportunity to act on
their claims before they present their claims to a federal
court in a habeas corpus petition. See 28 U.S.C. §
2254(b)(1), (c); O'Sullivan v. Boerckel, 526
U.S. 838, 842 (1999). The exhaustion requirement is satisfied
if the prisoner "invok[es] one complete round of the
State's established appellate review process,"
including a petition for discretionary review in the state
supreme court "when that review is part of the ordinary
appellate review procedure in the State." Id.
at 845, 847. Thus, to properly exhaust state remedies, a
prisoner must fairly present the factual and legal basis for
each of his claims to the state court of appeals and to the
state supreme court before raising the claims in a federal
habeas corpus petition. Wagner v. Smith, 581 F.3d
410, 414-15 (6th Cir. 2009).
has exhausted state remedies for his current claims, but
apparently not for the new claims that he seeks to add to his
petition. See ECF 8, PgID 55-56. To fully exhaust state
remedies for the claims that Petitioner raises in his
post-conviction motion, he must file applications for leave
to appeal in the Michigan Court of Appeals and in the
Michigan Supreme Court. Wagner, 581 F.3d at 414-15.
may stay a habeas petition that contains both exhausted and
unexhausted claims while the petitioner exhausts the
unexhausted claims. See Rhines v. Weber,
544 U.S. 269, 278 (2005). Here, the petition consists of only
unexhausted claims, but Petitioner seeks to stay the case to
exhaust new claims. The Court will therefore address: (1)
whether Petitioner may amend his petition to add the new
claims and (2) if so, whether he is entitled to a stay of the
case while he exhausts the new claims.
amendment, the Court "should freely give leave" to
amend a pleading "when justice so requires."
Fed.R.Civ.P. 15 (a)(2). Here, Petitioner is pro se and states
that he "did not know these issues existed prior to
filing his habeas petition." ECF 8, PgID 57. He also
filed his motion prior to any responsive pleading from
Respondent. Id. The Court will therefore first grant
Petitioner leave to amend his complaint to add the new
entitlement to a stay, Petitioner must demonstrate: (1) that
he has good cause for not exhausting state remedies before
filing his petition; (2) that his unexhausted claims are
potentially meritorious; and (3) that he is not engaged in
intentionally dilatory litigation tactics. Rhines, 544 U.S.
at 278. If he satisfies those conditions, the Court should
stay, rather than dismiss, the petition. Id.
Petitioner alleges that he is untrained in the law and that
he was unaware of the new issues before he filed his habeas
petition. ECF 8, PgID 57. The new claims are not ...