United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITIONER'S MOTION FOR A STAY
PAGE HOOD CHIEF JUDGE
2017, petitioner Thomas George Manuel, Jr., filed a pro
se habeas corpus petition under 28 U.S.C. § 2254.
The petition challenges Petitioner's convictions for
armed robbery, an assault, and two firearm offenses.
Petitioner asserts ten grounds for relief. Currently before
the Court is Petitioner's motion for a stay. For the
reasons given below, the Court will deny the motion.
a jury trial in Genesee County Circuit Court, the jury
convicted Petitioner of armed robbery, Mich. Comp. Laws
§ 750.529, assault with intent to do great bodily harm
less than murder, Mich. Comp. Laws § 750.84, felon in
possession of a firearm, Mich. Comp. Laws § 750.224f,
and possession of firearm during the commission of a felony,
Mich. Comp. Laws § 750.227b. The trial court sentenced
Petitioner to prison for twenty-five to fifty years for the
armed robbery and to lesser terms for the remaining
convictions. The Michigan Court of Appeals affirmed
Petitioner's convictions, see People v. Manuel,
No. 316756, 2014 WL 3705101 (Mich. Ct. App. July 24, 2014),
and on March 31, 2015, the Michigan Supreme Court denied
leave to appeal. See People v. Manuel, 497 Mich.
982; 861 N.W.2d 29 (2015).
2016, Petitioner filed a motion for relief from judgment,
which the trial court denied under Michigan Court Rule
6.508(D). See People v. Manuel, No. 12-031348-FC
(Genesee Cty. Cir. Ct. Apr. 26, 2016) (Docket No. 1-1,
PageID. 189-192). The Michigan Court of Appeals denied leave
to appeal the trial court's decision, see People v.
Manuel, No. 334728 (Mich. Ct. App. Feb. 13, 2017)
(Docket No. 1-1, PageID. 112), and Petitioner's
subsequent appeal to the Michigan Supreme Court was rejected
as untimely on April 21, 2017. Id., PageID. 115.
23, 2017, Petitioner filed his habeas corpus petition. His
grounds for relief are: (1) there was insufficient evidence
to support his conviction for armed robbery; (2) the
prosecutor failed to show due diligence in locating defense
witnesses and also used perjured testimony to obtain a
criminal conviction; (3) trial counsel was ineffective for
failing to object to the prosecutor's misconduct; (4)
trial counsel was ineffective for failing to obtain the
complainant's mental health records and for failing to
secure an expert witness to impeach the complainant's
testimony; (5) trial counsel was ineffective in failing to
present evidence of the alleged victim's character trait
for violence; (6) trial counsel was ineffective for failing
to challenge a biased juror for cause; (7) he was denied his
Sixth Amendment right to a speedy trial; (8) the assistant
prosecutor suborned perjury, obstructed justice, and failed
to correct a witness's perjury; (9) the verdict is
against the great weight of the evidence; and (10) he was
denied his right to effective assistance of appellate
counsel. The State argues in an answer to the petition that
these claims are meritless, procedurally defaulted, or not
cognizable on habeas review.
pending motion, Petitioner asks the Court to stay his case
until he can seek the State's consent to amend his
petition. The proposed amendment alleges that the trial court
committed a structural error by failing to instruct the jury
on the law of aiding and abetting. The State has not filed an
answer to the motion.
district courts ordinarily have authority to grant stays,
Rhines v. Weber, 544 U.S. 269, 276 (2005), and
“[b]y statute, Congress provided that a habeas petition
‘may be amended . . . as provided in the rules of
procedure applicable to civil actions.' ” Mayle
v. Felix, 545 U.S. 644, 649 (2005) (quoting 28 U.S.C.
§ 2242). When, as in this case, a party is not entitled
to amend its pleading as a matter of course, “a party
may amend its pleading only with the opposing party's
written consent or the court's leave, ” and
“[t]he court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2).
seeks a stay while he attempts to acquire the State's
permission to amend his petition by adding a claim about the
jury instructions. Petitioner has not exhausted state
remedies for his challenge to the jury instructions, and a
state prisoner's post-appellate remedy for a new claim is
to file a motion for relief from judgment. See
Subchapter 6.500 of the Michigan Court Rules. Petitioner has
already filed one motion for relief from judgment, and he may
not file a second or subsequent motion for relief from
judgment unless his motion is based on a retroactive change
in law or a claim of new evidence. Mich. Ct. R. 6.502(G)(2).
Petitioner's challenge to the state trial court's
jury instructions is not based on a retroactive change in the
law or on new evidence, a motion for relief for judgment
would be barred by Rule 6.502(G)(2), and on return to this
Court, the claim likely would be procedurally defaulted. Any
effort to exhaust state remedies for Petitioner's
proposed new claim and then to amend the habeas petition
would be futile. The ...