United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER DENYING PETITIONER'S MOTION TO
STAY PROCEEDINGS AND DISMISSING PETITION WITHOUT
L. LUDINGTON, UNITED STATES DISTRICT JUDGE.
state prisoner Durmon Troy Butler, III, filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
asserting he is being held in violation of his constitutional
rights. Petitioner was convicted in the Macomb County Circuit
Court of first-degree home invasion, Mich. Comp. Laws §
750.110a(2), second-degree home invasion, Mich. Comp. Laws
§ 750.110a(3), and attempted third-degree home invasion,
Mich. Comp. Laws § 750.110a(4). Now before the Court is
Petitioner's motion to stay these proceedings so that he
can raise unexhausted claims in state court. Petitioner's
motion for a stay will be denied and the petition dismissed
was charged in two separate cases in Macomb County Circuit.
In the first, No. 15-003578, he pleaded no contest to first-
and second-degree home invasion. In the second, No.
16-003997, he pleaded no contest to attempted third-degree
home invasion. He was sentenced as a fourth habitual offender
to 12 to 30 years for first-degree home invasion, 7 to 30
years for second-degree home invasion, and 1 year, 2 months
to 15 years for attempted third-degree home invasion.
Petitioner filed applications for leave to appeal with the
Michigan Court of Appeals. The Michigan Court of Appeals
denied leave to appeal. People v. Butler, III, No.
339183 (Mich. Ct. App. Sept. 7, 2017); People v. Butler,
III, No. 339184 (Mich. Ct. App. Sept. 7, 2017).
Petitioner then sought leave to appeal with the Michigan
Supreme Court. The Michigan Supreme Court denied leave to
appeal, People v. Butler, III, 501 Mich. 1038 &
501 Mich. 1040 (Mich. Apr. 3, 2018), and denied
reconsideration, People v. Butler, III, 502 Mich.
942 (Mich. July 27, 2018). Petitioner filed his federal
habeas petition on December 13, 2018.
seeks a stay in this matter while he exhausts his state court
remedies for additional claims which he did not present in
state court on direct appeal. Petitioner has not shown that
he would lack sufficient time under 28 U.S.C. § 2244(d)
to file a fully exhausted petition if his original petition
is dismissed without prejudice. The motion will be denied.
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. §2254 must first exhaust all state remedies.
See O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (“state prisoners must give the state courts one
full opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process”). To satisfy this
requirement, the claims must be “fairly
presented” to the state courts, meaning that the
prisoner must have asserted both the factual and legal bases
for the claims in the state courts. See McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The claims
must also be presented to the state courts as federal
constitutional issues. See Koontz v. Glossa, 731
F.2d 365, 368 (6th Cir. 1984). While the exhaustion
requirement is not jurisdictional, a “strong
presumption” exists that a petitioner must exhaust
available state remedies before seeking federal habeas
review. See Granberry v. Greer, 481 U.S. 129, 131,
134-35 (1987). The burden is on the petitioner to prove
exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir.
federal district court has discretion to stay a habeas
petition to allow a petitioner to present unexhausted claims
to the state courts in the first instance and then return to
federal court on a perfected petition. See Rhines v.
Weber, 544 U.S. 269, 276 (2005). However, stay and
abeyance is available only in “limited
circumstances” such as when the one-year statute of
limitations applicable to federal habeas actions poses a
concern, and when the petitioner demonstrates “good
cause” for the failure to exhaust state court remedies
before proceeding in federal court and the unexhausted claims
are not “plainly meritless.” Id. at 277.
has not shown the need for a stay. Although he may be
concerned that the one-year statute of limitations applicable
to federal habeas actions, see 28 U.S.C. §
2244(d), poses a problem, it does not. The one-year period
does not begin to run until 90 days after the conclusion of
direct appeal. Gonzalez v. Thaler, 565 U.S. 653-54
(2012) (stating that a conviction becomes final when the time
for filing a certiorari petition expires). The Michigan
Supreme Court denied Petitioner's motion for
reconsideration on July 27, 2018, and the time for seeking a
writ of certiorari with the United States Supreme Court
expired 90 days later - on October 25, 2018. The one-year
limitations period commenced the next day, October 26, 2018.
Petitioner filed the pending petition on December 13, 2018,
after approximately 49 days of the limitations period
elapsed. While 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 may be 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 additional
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). Petitioner has adequate time to fully exhaust his
state court remedies and return to federal court should he
wish to do so.
even assuming that Petitioner has not engaged in
“intentionally dilatory tactics” and has shown
“good cause” for failing to fully exhaust issues
in the state courts before seeking federal habeas relief, he
has not shown the need for a stay. Lastly, his unexhausted
claims concern matters of federal law which do not appear to
be “plainly meritless.” The state courts should
be given a fair opportunity to rule upon those claims. Given
the foregoing circumstances, a stay is unwarranted and a
non-prejudicial dismissal of the habeas petition is
motion to stay will be denied and his petition dismissed
without prejudice. If Petitioner wishes to proceed on the
claims contained in the petition and abandon his unexhausted
claims, he may move to reopen these proceedings within thirty
days from the date of the Order.
Petitioner may appeal the Court's decision, a certificate
of appealability must issue. See 28 U.S.C. §
2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When a federal
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 district court was
correct in its procedural ruling. See Slack ...