United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING RE-SUBMITTED MOTION TO STAY
J. MICHELSON UNITED STATES DISTRICT JUDGE
Smith was convicted in state court of assault with intent to
commit murder and lesser offenses. The case involved the
shooting of Matthew Ridley, who was shot twice in the head in
an abandoned house in Detroit and suffered brain injuries.
Ridley identified Smith-a drug-dealing associate-as the
shooter. Smith's trial defense was that Ridley suffered
from confabulation as a result of his brain injury, and that
Ridley honestly but mistakenly believed that Smith shot him.
Smith's habeas corpus petition raises the same claims
that he raised on direct appeal in the Michigan courts.
with his habeas corpus petition, Smith filed a motion to stay
the case so that he could present additional claims to the
state courts in a post-conviction proceeding. But the motion
did not even list the claims. As the Court was unable to
determine whether Smith had good cause for failing to raise
the unidentified claims earlier or whether they had any
merit, the Court denied the motion without prejudice. (ECF
has filed a second motion to stay the case. (ECF No. 9.) This
time, Smith lists several new claims of ineffective
assistance of counsel. For one, Smith claims that his trial
counsel was ineffective for failing to call Detective Byrge
at trial. Smith claims that Byrge took a statement from the
victim that someone other than Smith shot him (which would
support his confabulation defense). (ECF No. 9, PageID.234.)
Smith says he did not discover the existence of the
detective's statement until after his motion for leave to
appeal (presumably to the Michigan Supreme Court) was already
pending. (ECF No. 9, PageID.236.) Smith's renewed motion
also asserts that counsel failed to challenge an
identification procedure, failed to challenge the charging
documents, failed to challenge the habitual offender charge,
and failed to impeach prosecution witnesses. (ECF No. 9,
PageID.234-35.) But not unlike his first motion, the details
of these claims are missing.
motion also indicates that he has already filed a motion for
relief from judgment in the state trial court. The Wayne
County Circuit Court's website confirms that a hearing on
Smith's motion for relief from judgment is set for
September 3, 2019.
as here, a habeas corpus petition presents only exhausted
claims, the Court may either adjudicate the exhausted claims
while the petitioner simultaneously exhausts additional
claims in state court or stay the petition while the
petitioner seeks state-court collateral relief. See
Thomas v. Stoddard, 89 F.Supp.3d 937, 942-43 (E.D. Mich.
before, it is difficult for the Court to evaluate the merits
of the claims listed in Smith's motion for stay because
Smith does not provide the facts and law underlying these
claims. At least Officer Byrge's name appears on a police
report appended to filings in the Rule 5 materials. It
appears he was assigned to the case after the officers who
testified at trial (Douglas and Robinson) spoke with the
victim at the scene. (See ECF No. 11, PageID.844.)
And Byrge did not testify at trial. So perhaps one of
Smith's claims is not plainly meritless.
Court anticipates no significant prejudice to the Warden in
staying the petition. The Warden did not oppose Smith's
motion to stay. And while the Warden has responded to
Smith's petition, that response will presumably not be
affected by Smith's new ineffective-assistance claims.
Instead, the Warden can file a supplemental response to
address Smith's new claims.
if the Court denied the stay and decided the petition before
Smith completes state post-conviction review, he would need
to satisfy a very high burden to receive authorization to
file a successive habeas petition under 28 U.S.C. §
might have good cause for failure to exhaust his new
ineffective-assistance claims. He references an affidavit
about appellate counsel in support of good cause.
(See ECF No. 9, PageID.235-36.) But the affidavit is
not attached to the motion. So the Court knows little else
other than Smith apparently thinks his appellate counsel was
while a stay is somewhat questionable in this situation, the
Court will grant Smith's motion to stay. The state court
proceedings have already begun. Should Smith not obtain
relief in the trial court, he must file a timely application
for leave to appeal the denial of his motion for relief from
judgment to the Michigan Court of Appeals, and then if
necessary to the Michigan Supreme Court.
60 days after the conclusion of state-court post-conviction
proceedings in the Michigan Supreme Court, Smith may move to
amend his petition to add the newly-exhausted claims and to
reopen this proceeding. Failure to do so will result in the
forfeiture of these claims.
ORDERED that the motion to stay is GRANTED and the petition
for writ of habeas corpus shall be stayed and held in
abeyance pending Smith's state post-conviction review
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 ...