United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING MOTION TO STAY PROCEEDINGS
AND HOLD PETITION IN ABEYANCE
M. LAWSON, UNITED STATES DISTRICT JUDGE.
December 20, 2018, the petitioner, Michael Nathaniel Fuller,
presently confined at the Lakeland Correctional Facility in
Coldwater, Michigan, filed his pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2254. On August
2, 2019, he filed a motion to stay and hold the petition in
abeyance, so that he might return to state court to exhaust
additional claims. The Court now finds that the request for a
stay is lawful and should be granted.
petitioner was convicted on two counts of first-degree
murder, Mich. Comp. Laws § 750.316(1)(a), and one count
of possessing a firearm while committing a felony (felony
firearm), § 750.227b(1), following a jury trial in the
Montcalm County, Michigan circuit court. The convictions
arose from the October 1987 shooting of the petitioner's
ex-wife and her romantic companion. At trial and on appeal
the petitioner conceded the fact that he had committed the
killings but argued that he was inflamed by passion, had a
diminished mental capacity, and lacked the specific intent to
kill. On June 29, 1988, he was sentenced to concurrent terms
of life without parole for the murders, and a consecutive
term of two years on the gun count.
petitioner appealed his conviction raising four claims that
the trial court erred by (1) overruling challenges for cause
to two jurors, (2) allowing questioning on irrelevant and
highly prejudicial topics, (3) denying a motion for change of
venue, and (4) failing properly to instruct the jury on the
lesser offense of voluntary manslaughter. Those arguments
were rejected when the convictions and sentences were
affirmed by the Michigan Court of Appeals on September 10,
1991. People v. Fuller, No. 119306 (Mich. Ct. App.
Sept. 10, 1991). The Michigan Supreme Court denied the
petitioner's application for leave to appeal on March 30,
1992. People v. Fuller, 439 Mich. 975, 483 N.W.2d
393 (1992). On August 30, 2011, the petitioner filed a motion
for relief from judgment in the trial court arguing that his
convictions should be vacated because (1) new psychological
evidence suggested that the petitioner was suffering from
post-traumatic stress disorder at the time of the admitted
killings, (2) trial counsel was ineffective by failing to
present psychological evidence that existed at the time of
trial to support the defense that the petitioner lacked the
intent to kill required for a murder conviction, and (3) the
convictions should be vacated because “substantial
injustice” would result if they were allowed to stand.
The motion for relief from judgment was denied by the trial
court on February 10, 2012, and the Michigan Court of Appeals
denied a delayed application for leave to appeal on January
3, 2013. People v. Fuller, No. 311796 (Mich. Ct.
App. Jan. 3, 2013). The Michigan Supreme Court denied leave
to appeal on July 30, 2013. People v. Fuller, 494
Mich. 882, 834 N.W.2d 486 (2013).
petitioner now asks the Court to stay the proceedings and
hold the petition in abeyance so that he can return to state
court to exhaust additional claims that (1) trial counsel was
ineffective by failing to move for appointment of an expert
psychologist to bolster the “diminished capacity”
defense and by failing to move for a hearing to determine if
the petitioner was competent to stand trial, and (2)
appellate counsel was ineffective by failing to argue on
appeal that trial counsel was ineffective. Those claims were
not previously presented to the state courts.
doctrine of exhaustion of state remedies requires state
prisoners to “fairly present' their claims as
federal constitutional issues in the state courts before
raising those claims in a federal habeas corpus petition.
See 28 U.S.C. § 2254(b)(1)(A), (c);
O'Sullivan v. Boerckel, 526 U.S. 838, 844
(1999); McMeans v. Brigano, 228 F.3d 674, 680-81
(6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160 (6th
Cir. 1994). The exhaustion requirement is satisfied if a
prisoner invokes one complete round of the state's
established appellate review process, including a petition
for discretionary review to a state supreme court. See
O'Sullivan, 526 U.S. at 845, 847. A prisoner
“‘fairly presents' his claim to the state
courts by citing a portion of the Constitution, federal
decisions using constitutional analysis, or state decisions
employing constitutional analysis in similar fact
patterns.” Levine v. Torvik, 986 F.2d 1506,
1516 (6th Cir. 1993); see also Prather v. Rees, 822
F.2d 1418, 1420 (6th Cir. 1987) (“Ordinarily, the state
courts must have had the opportunity to pass on
defendant's claims of constitutional violations”).
A Michigan petitioner must present each ground to both
Michigan appellate courts before seeking federal habeas
corpus relief. Wagner v. Smith, 581 F.3d 410, 414
(6th Cir. 2009); Mohn v. Bock, 208 F.Supp.2d 796,
800 (E.D. Mich. 2002); see also Hafley v. Sowders,
902 F.2d 480, 483 (6th Cir. 1990). The petitioner bears the
burden of showing that her state court remedies have been
exhausted. Rust, 17 F.3d at 160.
Supreme Court has held that the filing of a federal habeas
corpus petition does not suspend the running of the one-year
limitations period under 28 U.S.C. § 2244(d)(2). See
Duncan v. Walker, 533 U.S. 167, 181-82 (2001). However,
the Supreme Court's decision in Duncan does not
prevent district courts from “retain[ing] jurisdiction
over a meritorious claim and stay[ing] proceedings pending
the complete exhaustion of state remedies, ” or from
“deeming the limitations period tolled for [a habeas]
petition as a matter of equity.” Id. at 182-83
(Stevens, J., concurring). The Supreme Court nonetheless has
cautioned that a stay is “available only in limited
circumstances, ” such as “when the district court
determines there was good cause for the petitioner's
failure to exhaust his claims first in state court, ”
the unexhausted claims are not “plainly meritless,
” and the petitioner is not “engage[d] in abusive
litigation tactics or intentional delay.” Rhines v.
Weber, 544 U.S. 269, 277-78 (2005).
Sixth Circuit has advised that it is preferable for a
district court to dismiss the unexhausted claims, retain
jurisdiction over the exhausted claims, and stay proceedings
pending exhaustion where to do otherwise would jeopardize the
timeliness of a subsequent petition. See Griffin
v. Rogers, 308 F.3d 647, 652 & 652 n.1 (6th Cir.
2002); see also Palmer v. Carlton, 276 F.3d 777, 781
(6th Cir. 2002) (finding it “eminently
reasonable” to dismiss unexhausted claims in a habeas
petition and stay proceedings on the remaining claims pending
exhaustion of state court remedies). The court of appeals
reiterated this point in its decision in Cunningham v.
Hudson, 756 F.3d 486 (6th Cir. 2014):
“[I]f 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 . . . the district
court should stay, rather than dismiss, the mixed
petition.” [Rhines v. Weber, 544 U.S.] at 278,
125 S.Ct. 1528. This is because “[i]n such
circumstance, . . . the petitioner's interest in
obtaining federal review of his claims outweighs the
competing interests in finality and speedy resolution of
federal petitions.” Id.; see also
Wagner, 581 F.3d at 419 (considering a mixed habeas
petition and “not[ing] that Petitioner's claims,
particularly the unexhausted claims, are not ‘plainly
meritless, '” so “assuming Petitioner can
show good cause for failing to present these claims to the
state court in the first instance, we see no reason why the
district court should not grant a ‘stay and
abeyance' while Petitioner exhausts in state court,
should Petitioner opt against dismissing his unexhausted
claims.” (citation and footnotes omitted)).
756 F.3d at 486.
Michigan Court Rules provide a process by which the
petitioner may raise his unexhausted claims. The petitioner
may file a motion for relief from judgment under Subchapter
6.500 of the Michigan Court Rules, which allows the trial
court to appoint counsel, seek a response from the
prosecutor, expand the record, permit oral argument, and
conduct an evidentiary hearing on the petitioner's claim.
The petitioner may appeal the trial court's disposition
of his motion for relief from judgment to the Michigan Court
of Appeals and the Michigan Supreme Court, and he may
thereafter file a petition for writ of certiorari in
the United States Supreme Court. To obtain relief in state
court, he will have to show cause for failing to raise the
unexhausted claims on direct review and resulting prejudice
or a significant possibility of innocence. See Mich.
Ct. R. 6.508(D)(3). However, he would have to make a similar
showing here if the Court concluded that there was no state
remedy to exhaust. Gray v. Netherland, 518 U.S. 152,
161-62 (1996); Hannah v. Conley, 49 F.3d 1193,
1195-96 & 1196 n.3 (6th Cir. 1995); Rust, 17
F.3d at 160.
measure, the petition filed on December 20, 2018 was
initiated well beyond the expiration of the one-year
limitations period under 28 U.S.C. § 2244(d)(1).
However, the petitioner argued in his petition that he is
entitled to equitable tolling based on newly acquired
psychological evidence of his “actual innocence”
of the crime of first-degree murder. The Court has reviewed
the petition and finds that the petitioner has asserted a
colorable tolling claim that should not be dismissed out of
hand, and that justice would best be served by addressing all
of the petitioner's extant claims and the timeliness
issue once the petitioner has had his chance to ...