United States District Court, E.D. Michigan, Southern Division
ORDER (1) GRANTING MOTION TO STAY CONSIDERATION OF
PETITION FOR WRIT OF HABEAS CORPUS (ECF #13), (2) DENYING
WITHOUT PREJUDICE RESPONDENT'S MOTION TO DISMISS (ECF
#8), AND (3) ADMINISTRATIVELY CLOSING THE CASE
MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE.
Petitioner
Richard Soldan is a state prisoner in the custody of the
Michigan Department of Corrections. On November 19, 2018,
Soldan filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (See
Petition, ECF #13.) In the petition, Soldan challenges the
revocation of his parole. (See id.)
On May
29, 2019, Respondent filed a motion to dismiss the petition
in which he argued that Soldan's claims are unexhausted.
(See Mot to Dismiss., ECF #8.) Soldan thereafter
filed a motion to stay consideration of the petition pending
the exhaustion of his state-court remedies. (See
Mot. to Stay, ECF #13.) In lieu of dismissing the
petition without prejudice, the Court GRANTS
Soldan's motion to stay, DENIES WITHOUT
PREJUDICE Respondent's motion to dismiss, holds
the petition in abeyance, and STAYS the
proceedings under the terms outlined in this order to permit
Soldan to exhaust his additional claims in state court. If
Soldan fails to comply with the terms of this order, the
Court will dismiss the petition without prejudice.
A state
prisoner who seeks federal habeas relief must first exhaust
his or her 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). Michigan's Administrative Procedures Act,
Mich. Comp. Laws § 24.303(3), provides an inmate whose
parole has been revoked the right to seek judicial review of
the parole board's decision with the circuit courts in
Michigan. See Penn v. Department of Corrections, 298
N.W.2d 756 (Mich. App. 1980); Witzke v. Withrow, 702
F.Supp. 1338, 1348 (W.D. Mich. 1988). If the circuit court
denies relief, a petitioner may seek further review in the
Michigan Court of Appeals and Michigan Supreme Court.
Here,
Soldan's motion for review is currently pending in the
Gratiot County Circuit Court. His challenge to the revocation
of his parole has thus not been fully exhausted.
To
avoid complications with the one-year statute of limitations
contained in 28 U.S.C. § 2244(d)(1), a federal court may
opt 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). After 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.
Accordingly,
IT IS HEREBY ORDERED that Soldan's
motion to stay consideration of his habeas petition while he
pursues his state-court remedies (ECF #13) is
GRANTED. This stay is conditioned upon
Soldan fully exhausting his state-court remedies, including
seeking timely review in the Michigan Court of Appeals and
Michigan Supreme Court (in the manner provided under Michigan
law), if the circuit court denies relief. The stay is further
conditioned on Soldan'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. See, e.g.,
Wagner v. Smith 581 F.3d 410, 411 (6th Cir. 2009)
(discussing similar procedure). If Soldan 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 (if any). See Calhoun v.
Bergh, 769 F.3d 409, 411 (6th Cir. 2014).
IT
IS FURTHER ORDERED that given the resolution
described above, Respondent's motion to dismiss (ECF #8)
is DENIED WITHOUT PREJUDICE.
IT
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).
I
hereby certify that a copy of the foregoing document was
served upon the parties and/or counsel of record on June 12,
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