United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION TO
STAY THE PROCEEDINGS
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Jamal Dupree Adams
(“Petitioner”) was convicted of assault with
intent to commit murder, Mich. Comp. Laws § 750.83;
carjacking, Mich. Comp. Laws § 750.529a; unlawful
imprisonment, Mich. Comp. Laws § 750.349b, and
possession of a firearm during the commission of a felony,
Mich. Comp. Laws § 750.227b, following a jury trial in
the Wayne County Circuit Court. He was sentenced to
concurrent terms of 31 to 60 years imprisonment on the
assault and carjacking convictions, a concurrent term of 10
to 15 years imprisonment on the unlawful imprisonment
convictions, and a concurrent term of two years imprisonment
on the felony firearm conviction in 2015.
current pleadings, Petitioner raises claims concerning the
effectiveness of trial counsel, the conduct of the
prosecutor, the great weight of the evidence, and the
sufficiency of the evidence. The matter is before the Court
on Petitioner's motion to stay the proceedings so that he
may return to the state courts and exhaust additional claims
concerning the prosecutor's alleged false statements at
trial and failure of trial and appellate counsel to contest
the issue. For the reasons stated, the Court denies
convictions arise from his assault and non-fatal shooting of
a friend in Detroit, Michigan on December 4, 2014. Following
his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals raising the claims
contained in his current habeas petition. The Michigan Court
of Appeals denied relief on those claims and affirmed
Petitioner's convictions. People v. Adams, No.
329385, 2017 WL 1289198 (Mich. Ct. App. April 6, 2017)
(unpublished). Petitioner filed an application for leave to
appeal with the Michigan Supreme Court, which was denied in a
standard order. People v. Adams, 501 Mich. 897, 901
N.W.2d 896 (Oct. 13, 2017).
filed his federal habeas petition on September 27, 2018. ECF
No. 1. Respondent filed an answer to the petition on April
25, 2019 contending that it should be denied because the
prosecutorial misconduct claim is procedurally defaulted and
all the claims lack merit. ECF No. 7. Petitioner filed the
instant motion on April 29, 2019. ECF No. 10.
seeks to stay the proceedings and hold his habeas petition in
abeyance so that he may return to state court to exhaust
available remedies as to an additional claim of prosecutorial
misconduct and the failure of trial and appellate counsel to
raise the issue. The doctrine of exhaustion of state remedies
requires state prisoners to “fairly present”
their claims as federal constitutional issues in the state
courts before raising those claims in a federal habeas
petition. 28 U.S.C. § 2254(b)(1)(A) and (c);
O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th
Cir. 2000); Rust v. Zent, 17 F.3d 155, 160 (6th Cir.
exhaustion requirement is satisfied if a prisoner invokes one
complete round of the state's established appellate
review process. O'Sullivan, 526 U.S. at 845. The
claims must be “fairly presented” to the state
courts, meaning that the petitioner must have asserted both
the factual and legal bases for the claims in the state
courts. McMeans, 228 F.3d at 681; see also
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)
(citing McMeans). The claims must also be presented
to the state courts as federal constitutional issues.
Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984).
A Michigan prisoner must present each issue to both the
Michigan Court of Appeals and the Michigan Supreme Court to
satisfy the exhaustion requirement. Hafley v.
Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Welch v.
Burke, 49 F.Supp.2d 992, 998 (E.D. Mich. 1999). While
the exhaustion requirement is not jurisdictional, a
“strong presumption” exists that a petitioner
must exhaust all available state remedies before seeking
federal habeas review. Granberry v. Greer, 481 U.S.
129, 131, 134-35 (1987). The burden is on the petitioner to
prove exhaustion. Rust, 17 F.3d at 160.
federal district court has discretion to stay a mixed habeas
petition, containing both exhausted and unexhausted claims,
to allow a petitioner to present unexhausted claims to the
state courts and then return to federal court on a perfected
petition. Rhines v. Weber, 544 U.S. 269, 276 (2005).
Stay and abeyance is available only in “limited
circumstances” such as when the one-year statute of
limitations poses a concern, and when the petitioner
demonstrates “good cause” for the failure to
exhaust state remedies before proceeding in federal court,
the petitioner has not engaged in intentionally dilatory
litigation tactics, and the unexhausted claims are not
“plainly meritless.” Id. at 277.
fails to show the need for a stay. His current habeas claims
are exhausted and he fails to show that the one-year statute
of limitations applicable to federal habeas actions,
see 28 U.S.C. § 2244(d), will preclude review.
The Michigan Supreme Court denied leave to appeal on October
13, 2017. Petitioner's convictions became final 90 days
later, see Jimenez v. Quarterman, 555 U.S. 113, 120
(2009) (a conviction becomes final when "the time for
filing a certiorari petition expires"); Lawrence v.
Florida, 549 U.S. 327, 333 (2007); S.Ct. R. 13(1), on
January 11, 2018. Accordingly, Petitioner was required to
file his federal habeas petition by January 11, 2019,
excluding any time during which a properly filed application
for state post-conviction or collateral review was pending in
accordance with 28 U.S.C. § 2244(d)(2). Petitioner filed
his habeas petition on September 27, 2018. At that point,
about eight and one-half months of the one-year period had
the time in which this case has been pending in federal court
is not statutorily tolled, see Duncan v. Walker, 533
U.S. 167, 181-82 (2001) (a federal habeas petition is not an
“application for State post-conviction or other
collateral review” within the meaning of 28 U.S.C.
§ 2244(d)(2) so as to statutorily toll the limitations
period), such time is equitably tolled. See, e.g.,
Johnson v. Warren, 344 F.Supp.2d 1081, 1088-89 (E.D.
Mich. 2004). The limitations period will also be tolled
during the time in which any properly filed post-conviction
or collateral actions are pending in the state courts.
See 28 U.S.C. § 2244(d)(2); Carey v.
Saffold, 536 U.S. 214, 219-221 (2002). Given that more
than three months of the one-year period remains, Petitioner
has sufficient time to exhaust additional issues in the state
courts and return to federal court should he wish to do so.
This is particularly true here given that Petitioner has
already prepared a motion for relief from judgment (attached
to his motion to stay) for filing in state court.
while Petitioner's new claims may not be “plainly
meritless, ” he fails to explain his delay in raising
them. Petitioner knew or could have known of facts underlying
his new claims at the time of trial and/or direct appeal.
Petitioner fails to show good cause for not exhausting his
additional claims in the state courts before seeking federal
habeas review. The fact that appellate counsel did not raise
the issues on direct appeal, while perhaps establishing cause
for that procedural default, does not excuse Petitioner's
failure to exhaust all of his issues on state collateral
review before proceeding in federal court. The lack of a
legal education, ignorance of the law, and/or the lack of
legal assistance do not constitute good cause for the failure