Maison v. Brewer

          OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR A WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE

          HON. GERSHWIN A. DRAIN, UNITED STATES DISTRICT COURT JUDGE

         Hilery 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).

         For the 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 the case.

         I. BACKGROUND

         Petitioner 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).

         Petitioner 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.

         Respondent 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.

         On July 3, 2019, ^[1] 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.

         Dkt. 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).

         The 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 ...