United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING PETITIONER'S MOTION TO DISMISS HIS
HABEAS PETITION WITHOUT PREJUDICE (Dkt. 17), DENYING AS MOOT
PETITIONER'S MOTION TO HOLD HIS PETITION IN ABEYANCE
(Dkt. 16), AND CLOSING THIS CASE FOR ADMINISTRATIVE
L. LUDINGTON, United States District Judge.
August 28, 2017, petitioner Michael Demond Lawson, a state
prisoner at the Carson City Correctional Facility in Carson
City, Michigan, filed a pro se petition for a writ
of habeas corpus under 28 U.S.C. § 2254. The pleading
challenged Petitioner's Wayne County, Michigan
convictions for second-degree murder, see Mich.
Comp. Laws § 750.317, and assault with intent to commit
murder, see Mich. Comp. Laws § 750.83.
Petitioner argued that: (1) the trial court deprived him of
his right of confrontation when the court permitted the
prosecution to admit a witness's prior testimony in
evidence; (2) Petitioner was tried jointly with his
co-defendant, and his trial attorney was ineffective for
failing to move for a separate jury; (3) there was
insufficient evidence to support his convictions, and the
jury's verdict was against the great weight of the
evidence; and (4) the trial judge deprived him of a fair
trial by refusing to recuse himself. See Dkt. 1, p.
indicated in his habeas petition that he raised his first
three habeas claims in the Michigan Court of Appeals and in
the Michigan Supreme Court, but that he raised his fourth
claim only in the Michigan Supreme Court. See id.,
pp. 3-4. The Court concluded from these allegations that
Petitioner had failed to exhaust state remedies for his
fourth claim. Accordingly, on October 25, 2017, the Court
directed Petitioner to inform the Court how he wanted to
proceed with his “mixed” petition of exhausted
and unexhausted claims. The Court gave Petitioner two
options: move for a dismissal of the petition without
prejudice or voluntarily dismiss his unexhausted fourth claim
and have the Court address his first three claims.
See Dkt. 5, p. 4.
responded to the Court's order by filing a motion to
amend his habeas petition. See Dkt. 6. He stated
that he wanted the Court to dismiss his unexhausted fourth
claim and to have the Court adjudicate his other three
claims. Id., p. 1. On January 17, 2018, the Court
granted Petitioner's motion to amend, dismissed his
unexhausted fourth claim, and directed the State to file a
response to the habeas petition. See Dkt. 7.
subsequently moved to dismiss his habeas petition without
prejudice. See Dkt. 9. He stated that, in light of
new information, he wanted the Court to ignore his prior
motion to amend and, instead, to dismiss his habeas petition
without prejudice so that he could file a post-conviction
motion in state court. The Court granted Petitioner's
motion to dismiss his case without prejudice and closed this
case on April 9, 2018. See Dkt. 10.
Petitioner moved to have the Court rescind its order of
dismissal and to stay his case. See Dkt. 11. He
explained in his motion that his state criminal case was
still pending on remand in the state trial court on a
sentencing issue. Petitioner asked the Court to hold his
habeas petition in abeyance pending the resolution of the
sentencing issue in state court and then allow him to amend
his petition. See id., pp. 2-3.
the Court could address Petitioner's motion, he filed
another habeas corpus petition challenging his same Wayne
County convictions for second-degree murder and assault with
intent to commit murder. See Lawson v. Rewerts, No.
18-cv-13150 (E.D. Mich. Oct. 9, 2018). The 2018 petition
raised the first three claims that Petitioner presented to
the Court in this case and a fourth claim regarding the
scoring of the state sentencing guidelines. The case was
randomly assigned to Chief United States District Judge
Denise Page Hood and then reassigned to this Court as a
companion to this case.
Court construed the 2018 petition as a request to proceed
with this case. The Court closed the 2018 case and directed
the Clerk of Court to file the 2018 petition in this case.
See Dkt. 7 in case number 18-cv-13150. The 2018
petition was filed as an amended petition in this case.
See Dkt. 12. The Court then denied Petitioner's
motion to rescind the order dismissing his 2017 petition
because the 2018 petition appeared to be a request to proceed
with this case. See Dkt. 15.
before the Court are Petitioner's motion to hold his
petition in abeyance, Dkt. 16, and his subsequent motion,
Dkt. 17, to dismiss his petition without prejudice.
Petitioner alleges in the latter motion that his convictions
are not yet final because his state criminal case is still
pending in state court on a sentencing issue, which is the
basis for his fourth habeas claim. He wants the Court to
dismiss his case without prejudice and to deny as moot his
motion to hold his petition in abeyance. See Dkt.
17, pp. 1-3, 5.
review of the state trial court's docket reveals that
Petitioner was re-sentenced on April 12, 2019. See
Petitioner then appealed to the Michigan Court of Appeals,
where his appeal remains pending. See
The question here is whether this Court may consider
Petitioner's challenge to his convictions and sentence
before the state courts make a final determination on his
sentence. The United States Court of Appeals for the Sixth
Circuit recently explained that -
Under § 2254(a), a district court may “entertain
an application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
In Burton v. Stewart, 549 U.S. 147 (2007), the
Supreme Court held that “[f]inal judgment in a criminal
case means sentence. The sentence is the judgment.”
Id. at 156 (quoting Berman v. United
States, 302 U.S. 211, 212 (1937)). General principles of
federal appellate jurisdiction require that review of state
court proceedings await termination by final judgment, Di
Bella v. United States, 369 U.S. 121, 124 (1962), and
the final judgment in a criminal case does not occur
“until after conviction and the imposition of
sentence.” Flanagan v. United States, 465 U.S.
259, 263 (1984). “This insistence on finality and
prohibition of piecemeal review discourage[s] undue
litigiousness and leaden-footed administration of justice,
particularly damaging to the conduct of criminal
cases.” Di Bella, 369 U.S. at 124 (citing
Cobbledick v. United States, 309 U.S. 323, 324-26
Davis v. Warren, No. 18-1768, 2019 WL 3035577, at *2
(6th Cir. Feb. 19, 2019) (unpublished). Because Petitioner
filed his habeas petition “before the state trial court
reimposed a sentence on remand, his state judgment had not
become final, and his habeas petition was therefore not ripe
for review.” Id. The habeas petition still is
not ripe because Petitioner's appeal from the new
sentence remains pending in the State's appellate court.
As a result, this Court lacks jurisdiction to consider
Petitioner's habeas petition. See id.
it is ORDERED that Petitioner's motion
to dismiss his petition without prejudice (Dkt. 17) is
GRANTED, and his motion to hold his petition
in abeyance (Dkt. 16) is DENIED as moot.
further ORDERED that, if Petitioner is
unsuccessful in state court, he shall file a motion to
re-open this case and an amended petition, using the same
caption and case number that appear on the first page of this
order, within sixty (60) days of exhausting
state remedies. Failure to comply with this order could