United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION
FOR WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE
NANCY G. EDMUNDS, UNITED STATES DISTRICT COURT JUDGE.
Avendt, (“Petitioner”), confined at the St. Louis
Correctional Facility in St. Louis, Michigan, filed a pro
se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his conviction for three
counts of first-degree criminal sexual conduct, MICH. COMP.
LAWS § 750.520b(2)(b); and being a fourth felony
habitual offender, MICH. COMP. LAWS § 769.12. Petitioner
asks to hold the petition in abeyance to permit him to return
to the state courts to exhaust additional claims which are
not included in the current petition. The Court holds the
petition in abeyance and stays the proceedings under the
terms outlined in this opinion to permit petitioner to return
to the state courts to exhaust his additional claims. The
Court administratively closes the case.
was convicted by a jury in the Oakland County Circuit Court.
Petitioner's conviction was affirmed on appeal.
People v. Avendt, No. 332538, 2017 WL 4942802 (Mich.
Ct. App. Oct. 31, 2017), lv. den. 501 Mich. 1082,
911 N.W.2d 700 (2018).
filed what he has labeled a “Motion to Hold Habeas
Petition in Abeyance, ” which indicates his intention
to seek habeas relief from his state court conviction.
Petitioner asks this Court to hold his case in abeyance so he
can return to the state courts to exhaust additional claims.
Petitioner's motion is construed as a petition for writ
of habeas corpus.
has filed a motion to hold the petition for writ of habeas
corpus in abeyance.
Court construes petitioner's motion to hold the petition
for writ of habeas corpus as an actual petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2254,
because he indicates that he wishes to seek habeas relief on
his claims and requests to hold the petition for writ of
habeas corpus in abeyance while he pursues state
post-conviction relief in the state courts. See e.g.
Sueing v. Palmer, 503 Fed.Appx. 354, 356-57 (6th Cir.
2012)(petitioner's letter to the district court to grant
a stay and abeyance or to extend the time to file a petition
for writ of habeas corpus should have been construed as a new
habeas petition); Watkins v. Haas, 143 F.Supp.3d
632, 638, n. 4 (E.D. Mich. 2015), rev'd sub nom. on
other grds Watkins v. Deangelo-Kipp, 854 F.3d 846 (6th
Cir. 2017)(district court construed petitioner's request
to stay the petition as a newly filed petition for writ of
The motion to hold the petition in abeyance is
federal district court is authorized to stay fully exhausted
federal habeas petitions pending the exhaustion of other
claims in the state courts. See Bowling v.
Haeberline, 246 Fed.Appx. 303, 306 (6th Cir. 2007)(a
habeas court is entitled to delay a decision in a habeas
petition that contains only exhausted claims “when
considerations of comity and judicial economy would be
served”); See also Thomas v. Stoddard, 89
F.Supp.3d 937, 943 (E.D. Mich. 2015).
Court grants petitioner's motion to hold the petition in
abeyance while he returns to the state courts to exhaust. The
outright dismissal of the petition, even if it is without
prejudice, might bar review of petitioner's claims in
this Court due to the expiration of the one year statute of
limitations contained in the Antiterrorism and Effective
Death Penalty Act (AEDPA). See 28 U.S.C. §
2244(d)(1). A common reason for holding a habeas petition in
abeyance arises when the original petition was timely filed,
but a second, exhausted habeas petition would be time barred
by the AEDPA's statute of limitations. See Hargrove
v. Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002).
even where a district court determines that a stay is
appropriate pending exhaustion, the district court
“should place reasonable time limits on a
petitioner's trip to state court and back.”
Rhines v. Weber, 544 U.S. 269, 278 (2005). To ensure
that there are no delays by petitioner in exhausting state
court remedies, this Court imposes time limits within which
petitioner must proceed with his state court post-conviction
proceedings. See Palmer v. Carlton, 276 F.3d 777,
781 (6th Cir. 2002).
Court holds the petition in abeyance to allow petitioner to
initiate post-conviction proceedings in the state courts.
This tolling is conditioned upon petitioner initiating his
state post-conviction remedies within sixty days of receiving
this Court's order and returning to federal court within
sixty days of ...