United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING PETITIONER'S MOTION FOR A STAY
(Doc. 10) AND CLOSING THIS CASE FOR ADMINISTRATIVE
COHN, UNITED STATES DISTRICT JUDGE
a habeas case under 28 U.S.C. § 2254. Pro se
petitioner Kevin DeMarco Weatherspoon challenges his state
court conviction for criminal sexual conduct (CSC) in the
first degree, Mich. Comp. Laws § 750.520b. Before the
Court is Petitioner's motion for a stay and to hold his
petition in abeyance. (Doc. 10). For the reasons which
follow, the motion will be granted.
was arrested on the CSC charge while he was on parole for a
prior conviction. In January of 2016, he pleaded no contest
to one count of first-degree CSC, and was sentenced
Petitioner to prison for thirteen to twenty years,
consecutive to the sentence that he received for violating
parole. Petitioner moved to withdraw his plea, to vacate his
conviction, and to receive sentencing credit. The trial court
then raised his current claims in applications for leave to
appeal. The Michigan Court of Appeals denied leave to appeal
for lack of merit in the grounds presented, see People v.
Weatherspoon, No. 335698 (Mich. Ct. App. Mar. 7, 2017)
(unpublished), and on September 12, 2017, the Michigan
Supreme Court denied leave to appeal because it was not
persuaded to review the questions presented to it. See
People v. Weatherspoon, 901 N.W.2d 109 (2017).
then filed the instant petition, raising the following
claims: (1) he is entitled to withdraw his plea because he
did not understand that his maximum sentence for the CSC
conviction would be stacked on top of the maximum sentence
for his previous conviction and (2) his current conviction
should be vacated, or he is entitled to sentencing credit,
due to pretrial delay.
pending motion, which the State has not opposed, Petitioner
requests a stay of his federal case while he returns to state
court and pursues state remedies for several new claims. The
new claims pertain to Petitioner's trial and appellate
attorneys, newly-discovered evidence of “text”
messages, and other matters currently being investigated and
compiled. (Doc. 10, p. 1 and unnumbered pp. 3-4).
doctrine of exhaustion of state remedies requires state
prisoners to give the state courts an opportunity to act on
their claims before they present their claims to a federal
court in a habeas corpus petition. See 28 U.S.C.
§ 2254(b)(1), (c); O'Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). This requirement is satisfied if
the prisoner “invok[es] one complete round of the
State's established appellate review process, ”
including a petition for discretionary review in the state
supreme court “when that review is part of the ordinary
appellate review procedure in the State.”
O'Sullivan, 526 U.S. at 845, 847. Thus, to
properly exhaust state remedies, a prisoner must fairly
present the factual and legal basis for each of his claims to
the state court of appeals and to the state supreme court
before raising the claims in a federal habeas corpus
petition. Wagner v. Smith, 581 F.3d 410, 414-15 (6th
has exhausted state remedies for his present claims, but he
seeks to raise other claims that have not been presented to
the state courts, and he appears to have an available state
remedy to exhaust. See Subchapter 6.500 of the
Michigan Court Rules, governing the procedures for
post-appeal relief. A dismissal of this case while Petitioner
pursues additional state-court remedies could result in a
subsequent habeas petition being barred by the one-year
statute of limitations, 28 U.S.C. § 2244(d). The Supreme
Court, however, has approved a
“stay-and-abeyance” procedure that allows
district courts to stay a federal proceeding and to hold a
habeas petition in abeyance while the petitioner pursues
state remedies for his unexhausted claims. See Rhines v.
Weber, 544 U.S. 269, 275 (2005). After the prisoner
exhausts his state remedies, the federal court can lift its
stay and allow the petitioner to proceed in federal court.
Id. at 275-76.
unexhausted claims are best first addressed and decided by
the state courts. The Court anticipates no prejudice to
Respondent in staying the petition. Nothing in the record
suggests that Petitioner engaged in intentionally dilatory
tactics. In addition, it does not appear that
Petitioner's claims are not "plainly
meritless." Therefore, a stay is appropriate.
Petitioner's motion to stay is GRANTED. The petition is
STAYED pending completion of Petitioner's state
application for post-conviction review. This stay is
conditioned upon Petitioner filing his motion for relief from
judgment within sixty (60) days of this order and then filing
a motion to lift the stay and an amended habeas petition
(using the case number already assigned to this case) within
sixty (60) ...