United States District Court, E.D. Michigan, Southern Division
Patricia T. Morris Magistrate Judge.
OPINION AND ORDER GRANTING PETITIONER'S MOTION TO
J. MICHELSON UNITED STATES DISTRICT JUDGE.
Noel Johnson currently has pending a petition for a writ of
habeas corpus. Johnson is in the custody of the Michigan
Department of Corrections, having been convicted of
first-degree murder, Mich. Comp. Laws § 750.316(1)(a),
and other felonies. Johnson's petition is mixed, meaning
some claims are fully exhausted while others are not. So he
has filed a motion to hold this proceeding in abeyance while
he fully exhausts his claims in state court. (ECF No. 2) For
the reasons below, the Court grants Johnson's motion.
Michigan law Johnson's conviction of first-degree murder
resulted in a sentence of life without the possibility of
sought relief from the state courts. He brought a number of
claims before the Michigan Court of Appeals. But his
convictions were affirmed. People v. Johnson, No.
325456, 2016 WL 3542327 (Mich. Ct. App. June 28, 2016). Then
Johnson included only two of his claims in an application for
leave to appeal filed in the Michigan Supreme Court.
(See ECF No. 1, PageID.2-3). Yet the Michigan
Supreme Court denied leave to appeal. People v.
Johnson, 500 Mich. 934 (Mich. 2017).
continued to seek relief in the state courts. He filed a
motion for relief from judgment in the trial court. He raised
a single claim. The trial court found the claim procedurally
barred and denied the motion (ECF No. 1), and the Michigan
Court of Appeals denied leave to appeal. People v.
Johnson, No. 345710 (Mich. Ct. App. Dec. 20, 2018). But
the Michigan Supreme court vacated the trial court's
opinion and order denying relief from judgment. People v.
Johnson, 503 Mich. 1035 (Mich. 2019). The state supreme
court remanded the case to the trial court to address whether
Johnson met his burden under Mich. Ct. R. 6.508(D) (i.e.,
whether Johnson carried his burden of establishing cause and
prejudice). Id. The Michigan Supreme Court further
ordered the trial court to address whether appellate
counsel's failure to raise the claim on direct appeal
constituted ineffective assistance of appellate counsel.
his appeal from the denial of his motion for relief from
judgment was pending, Johnson filed this habeas corpus
petition. He raises eight claims-the seven claims raised in
the Michigan Court of Appeals and the ineffective assistance
of counsel claim raised in his still-pending motion for
relief from judgment.
federal habeas petitioner must first present all claims to
the state courts before raising the claims in a habeas corpus
petition. O'Sullivan v. Boerckel, 526 U.S. 838,
842 (1999); 28 U.S.C. § 2254(b)(1). To satisfy this
exhaustion requirement, a prisoner must “invok[e] 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. In Michigan, a petitioner satisfies the
exhaustion requirement by presenting claims to the Michigan
Court of Appeals and Michigan Supreme Court. Wagner v.
Smith, 581 F.3d 410, 414 (6th Cir. 2009).
federal court may stay a federal habeas corpus proceeding
pending resolution of yet unexhausted state post-conviction
proceedings. See Rhines v. Weber, 544 U.S. 269, 276
(2005) (“District courts do ordinarily have authority
to issue stays where such a stay would be a proper exercise
of discretion.”) (citations omitted). “[I]t
likely would be an abuse of discretion for a district court
to deny a stay and to dismiss a mixed petition if the
petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is
no indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Id. at 278.
“In such circumstances, the district court should stay,
rather than dismiss, the mixed petition, ” because
“the petitioner's interest in obtaining federal
review of his claims outweighs the competing interest in
finality and speedy resolution of federal petitions.”
has filed a motion to hold these proceedings in abeyance
while he exhausts his eighth claim for habeas relief. This
unexhausted claim, that counsel was ineffective in failing to
adequately challenge key prosecution witness Kayln Ware's
identification testimony and in failing to question her at
the pretrial hearing, is the subject of Johnson's pending
motion for post-conviction review in state
claim that his attorney was ineffective in failing to
challenge a key witness's identification testimony is not
plainly meritless. Indeed, the Michigan Supreme Court's
decision reversing the trial court's denial of this claim
indicates that the claim deserves further consideration. The
Court also finds no indication that Johnson is intentionally
attempting to unfairly and unnecessarily delay this
proceeding. Finally, the time remaining in the limitations