United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION
FOR A WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE
GERSHWIN A. DRAIN, UNITED STATES DISTRICT COURT JUDGE
Noel Maison, (“Petitioner”), confined at the
Huron Valley Women's Correctional Facility in Ypsilanti,
Michigan, seeks the issuance of a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In her pro se
application, Petitioner challenges her conviction for
first-degree felony murder, Mich. Comp. Laws §
750.316(1)(b), two counts of torture, Mich. Comp. Laws §
750.85, and two counts of first-degree child abuse, Mich.
Comp. Laws § 750.136b(2).
reasons stated below, in lieu of dismissing the
Petition, the Court holds the Petition in abeyance and stays
the proceedings under the terms outlined below to permit
Petitioner to return to the state courts to exhaust her
additional claim. The Court will also administratively close
and her husband were convicted following a jury trial in the
St. Clair County Circuit Court. Petitioner's conviction
was affirmed on appeal. People v. Maison, No.
332162, 2017 WL 5162310 (Mich. Ct. App. Nov. 7, 2017);
leave den. 501 Mich. 1062, 910 N.W.2d 275 (2018).
initially filed a pro se writ of habeas corpus on
January 7, 2019. See ECF 2:19-CV-10057, ECF # 1. In
her petition, she raised the following grounds:
I. There was insufficient evidence to convict Hilery Maison
of the charges to felony murder as to Mackenzie Maison and
torture and first degree child abuse as to both Mackenzie
Maison and Makayla Maison [i]n violation of her state and
federal constitutional right[s] to due process.
II. Mrs. Maison's Federal and State constitutional rights
to the effective assistance of counsel were violated and she
is entitled to a new trial where her trial counsel failed to
request instructions on causation and or where she failed to
request instructions on the necessarily included lesser
offense of involuntary manslaughter.
moved to dismiss the petition on the ground that
Petitioner's second claim was not exhausted with the
state courts. This Court granted respondent's motion and
entered an order dismissing the petition without prejudice,
indicating that Petitioner should file a motion for relief
from judgment to exhaust her state court remedies with the
trial court, and return to file a new habeas petition with 30
day of the order. ECF 12, PageID.1753.
3, 2019,  Petitioner filed a habeas petition, which
is now before this Court, seeking a writ of habeas corpus on
the following grounds:
I. Defendant-Appellant's constitutional right to due
process of law, U.S. Const, Am, XIV; Const 1963, art I,
section 17, was violated when the evidence of the two counts
of 1st degree child abuse regarding Mackenzie and Makayla
Maison was legally insufficient to convict Hilery Maison of
that offense at trial and the trial court abused its
discretion when it denied the motion for a directed verdict.
II. Defendant-Appellant was denied the effective assistance
of counsel guaranteed by the federal and state constitutions
(US CONST, AM VI; CONST 1963, ART 1, § 20) where trial
counsel failed to call the 10-year-old sibling who lived in
the home and reported to police that nothing was amiss,
failed to investigate or cross examine the experts as to
Makayla's health issues that could have been caused by
lead poisoning, failed to impeach Dr. Spitz on what
Mackenzie's weight would have been if she hadn't been
severely dehydrated at her time of death due to pneumonia,
and failed to move for a Daubert hearing to
determine the appropriate methodology to determine starvation
and how dehydration affects that analysis.
No. 1, pgs. 5, 22 (Pg. ID 5, 22). Maison attaches
“Attachment A” to her Petition which alleges a
claim of insufficient evidence to sustain her convictions and
a second claim pertaining to the ineffective assistance of
trial counsel for failure to request an instruction on
causation and/or failure to request an instruction on the
necessary included lesser offense of involuntary
manslaughter. See Dkt. No. 1, pg. 51 (Pg. ID 51).
second claim is not contained within the Habeas Petition and
it is not clear if Petitioner intends to again raise this
unexhausted claim, attached to the Petition ...