United States District Court, E.D. Michigan, Southern Division
TERRY W. WILLIAMS, Plaintiff,
LLOYD W. RAPELJE, Defendant.
ORDER GRANTING PETITIONER'S MOTION TO STAY
PROCEEDINGS , CLOSING CASE, AND DENYING PETITIONER'S
REMAINING PENDING MOTIONS [62, 64, 70]
STEPHEN J. MURPHY, III UNITED STATES
Terry W. Williams filed a pro se petition for a writ
of habeas corpus challenging his convictions for first-degree
home invasion, being a felon in possession of a firearm,
felonious assault, possession of a firearm during the
commission of a felony, and killing an animal. ECF 47. He was
sentenced as a third habitual offender to 195 to 480
months' imprisonment for first-degree home invasion, 60
to 120 months' imprisonment for felon in possession, 50
to 96 months' imprisonment for felonious assault, and 50
to 96 months' imprisonment for killing an animal, to be
served consecutively to 60 months' imprisonment for the
filed four pending motions: (1) a motion to stay proceedings,
ECF 65; (2) a motion for an extension of time to respond to
the answer and for appointment of counsel, ECF 64; (3) an
amended motion for an evidentiary hearing, ECF 62; and (4) a
motion for an order under Rule 45(g), ECF 70. For the reasons
below, the Court will grant the motion to stay and deny the
three other motions.
Motion to Stay
asks the Court to stay his habeas petition while he returns
to state court to raise an additional claim based upon
newly-discovered evidence. ECF 65. State prisoners must
exhaust available state remedies for each of the claims
presented in a habeas petition before seeking a federal writ
of habeas corpus. 28 U.S.C. § 2254(b)(1). Petitioner
seeks a stay because, although the claims raised in the
petition are exhausted, he would like to raise an additional,
unexhausted claim in state court.
federal court may stay a federal habeas petition and hold it
in abeyance pending resolution of state court post-conviction
motion if (1) dismissal of the habeas petition would
jeopardize the timeliness of a future petitioner; (2) there
is good cause for the petitioner's failure to exhaust the
claims; (3) the unexhausted claims are not "plainly
meritless;" and "there is no indication that the
petitioner engaged in intentionally dilatory litigation
tactics." Rhines v. Weber, 544 U.S. 269, 277-78
unexhausted claim concerns the conviction of a former police
officer, David Hansberry, who worked as the lead investigator
in Williams's state court case. Williams states that
Hansberry has been convicted of crimes such as filing false
affidavits for search warrants, theft, and destroying
evidence. ECF 65, PgID 2988- 89. Williams recently learned of
Hansberry's 2016 convictions. Id. at 2989.
Williams argues that Hansberry's convictions are relevant
to his case because they support his defense that evidence
was suppressed or destroyed, the search warrant was invalid,
and that Hansberry improperly developed eyewitness testimony.
Id. at 2988-89.
does not appear to have engaged in dilatory litigation
tactics and the claim is not plainly meritless. Moreover,
dismissal of the case could result in the running of the
one-year statute of limitations in 28 U.S.C. § 2254(d).
Williams already filed a post-conviction motion in state
court. And a prison generally may file only one
post-conviction motion. Mich. Ct. R. 6.502(G)(1). But an
exception exists for newly-discovered evidence. Mich. Ct. R.
6.502(G). The Court will therefore grant Williams's
motion to stay the case and will hold the petition in
district court determines that a stay is appropriate pending
resolution of state court remedies, the district court
"should place reasonable time limits on a
petitioner's trip to state court and back."
Rhines, 544 U.S. at 278.
ensure that Williams does not delay in exhausting his state
court remedies, the Court imposes time limits within which he
must proceed. See Palmer v. Carlton, 276 F.3d 777,
781 (6th Cir. 2002). Williams must present his claim in state
court within sixty days from the date of this Order. See
Id. Petitioner must also ask this court to lift the stay
within sixty days of completing state court review. See
Id. "If the conditions of the stay are not met, the
stay may later be vacated nunc pro tunc as of the
date the stay was entered, and the petition may be
dismissed." Id. (internal quotation omitted).
Motion for an Extension of Time and Appointment of
also filed a motion for an extension of time to respond to
Respondent's answer and for appointment of counsel. ECF
64. But, Williams timely filed a reply within the time
allotted. ECF 66. Therefore, an extension of time is
also seeks appointment of counsel. Williams does not have an
absolute right to be represented by counsel on federal habeas
corpus review. See Wright v. West, 505 U.S. 277, 293
(1992) (citing Pennsylvania v. Finley, 481 U.S. 551,
555 (1987)). "[A]ppointment of counsel in a civil case
is . . . a matter within the discretion of the court. It is a
privilege and not a right." Childs v.
Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (citation
omitted). A habeas petitioner may obtain representation at
any stage of the case "[w]henever . . . the court
determines that the interests of justice ...