United States District Court, E.D. Michigan, Southern Division
CALVIN R. MOSBY, Petitioner,
KEVIN LINDSEY, Respondent.
OPINION & ORDER GRANTING MOTION TO HOLD HABEAS
PETITION IN ABEYANCE (DKT. 9) AND ADMINISTRATIVELY CLOSING
A. GOLDSMITH UNITED STATES DISTRICT JUDGE
R. Mosby, (“Petitioner”), filed a pro se petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his Wayne Circuit Court convictions for one count
of first-degree murder, two counts of assault with intent to
commit murder, felon in possession of a firearm, and
commission of felony with a firearm. The case involves the
death of an eight-year-old child who was shot and killed
while he slept in his bed when shots were fired at his home.
prisoner who seeks federal habeas relief must first exhaust
his available state court remedies before raising a claim in
federal court. 28 U.S.C. § 2254(b) and (c); see
Picard v. Connor, 404 U.S. 270, 275-278 (1971).
Petitioner asserts that he presented five claims on direct
appeal in the Michigan Court of Appeals following his
conviction. Both the Michigan Court of Appeals and the
Michigan Supreme Court denied relief on direct appeal.
People v. Anderson, Nos. 327732, 328134 (Mich. Ct.
App. Nov. 10, 2016); People v. Mosby, 895 N.W.2d 524
states that he has an additional nine claims, among them
claims challenging the effectiveness of his trial and
appellate counsel. He requests that the Court stay the case
while he pursues state post-conviction review with respect to
his new claims.
federal court may stay a federal habeas corpus proceeding
pending resolution of state post-conviction proceedings.
See Rhines v. Weber, 544 U.S. 269, 276 (2005)
(“District courts do ordinarily have authority to issue
stays where such a stay would be a proper exercise of
discretion.”) (citations omitted). In Rhines,
the Supreme Court held that a federal court may stay a
petition for habeas corpus relief and hold further
proceedings in abeyance while a petitioner exhausts
unexhausted claims if outright dismissal of the petition
would jeopardize the timeliness of a future petition, there
is good cause for the petitioner's failure to exhaust
state court remedies, the unexhausted claims are not
“plainly meritless, ” and “there is no
indication that the petitioner engaged in intentionally
dilatory tactics.” Id. at 278. The
Rhines decision concerned a mixed habeas petition;
that is, the petition presented both claims that had been
properly exhausted in state court and claims that had not.
Id. at 272-273. The petition at issue in this case
raises only exhausted claims. While Rhines did not
address staying fully exhausted petitions, courts in this
district have held that a court may stay fully exhausted
federal habeas petitions pending the exhaustion of other
claims in the state courts. See, e.g., Thomas v.
Stoddard, 89 F.Supp.3d 937 (E.D. Mich. 2015).
new claims raise cognizable constitutional issues upon which
habeas relief may be granted. Beyond that, the Court
cannot evaluate the merits of these claims. It is best that
the claims be first addressed and decided by the state
courts, which may conduct an evidentiary hearing or otherwise
allow Petitioner to supplement the record in accordance with
state law. The Court anticipates no prejudice to Respondent
in staying the petition, and indeed Respondent has not filed
any opposition to Petitioner's motion. Further, if the
Court denied the stay and decided the petition before
Petitioner completes state-court collateral review,
Petitioner would need to satisfy a very high burden to
receive authorization to file a successive habeas petition
under 28 U.S.C. § 2244(b)(2). Petitioner also has
alleged good cause for failure to exhaust his state court
remedies. He alleges that appellate counsel was ineffective
for failing to raise these issues on direct appeal, which
raises a claim of constitutional magnitude. Further, outright
dismissal of the petition could jeopardize the timeliness of
a future petition because only days remained on the
applicable one-year limitations period when the case was
Court holds the petition in abeyance. Petitioner must exhaust
his new claim in state court by filing a motion for relief
from judgment in the Wayne Circuit Court within 60 days of
the date of this order, and then if it is denied, he must
file timely appeals in the Michigan Court of Appeals and
Michigan Supreme Court. Wagner v. Smith, 581 F.3d
410, 419 (6th Cir. 2009). Further, he must ask this Court to
lift the stay within 60 days of exhausting his state court
remedies. Failure to comply with any of the conditions of the
stay could result in the dismissal of the habeas petition.
Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014).
ordered that the motion to stay is granted and the petition
for writ of habeas corpus shall be stayed and held in
abeyance pending Petitioner's state post-conviction
avoid administrative difficulties, the Court orders the Clerk
of Court to close this case for statistical purposes only.
Nothing in this order or in the related docket entry shall be
considered a dismissal or disposition of this ...