United States District Court, E.D. Michigan, Southern Division
R. Grand Magistrate Judge.
ORDER GRANTING PETITIONER'S MOTION TO HOLD CASE
IN ABEYANCE  AND CLOSING CASE FOR ADMINISTRATIVE
F. Cox U.S. District Judge.
matter has come before the Court on petitioner Jerry Thomas
Ficht's pro se habeas corpus petition and his
motion to hold the petition in abeyance while he exhausts
state remedies. For the reasons given below, the Court grants
Petitioner's motion and closes this case for
2016, Petitioner was convicted of assault with intent to do
great bodily harm less than murder, Mich. Comp. Laws §
750.84. The state trial court sentenced Petitioner to prison
for five to ten years. The Michigan Court of Appeals affirmed
Petitioner's conviction, see People v. Ficht,
No. 334021, 2018 WL 521828 (Mich. Ct. App. Jan. 23, 2018)
(unpublished), and on July 3, 2018, the Michigan Supreme
Court denied leave to appeal. See People v. Ficht,
502 Mich. 904; 913 N.W.2d 288 (2018).
6, 2019, Petitioner filed his habeas corpus petition. He
alleges as grounds for relief that: (1) the trial court
deprived him of his constitutional rights to present a
defense and to be judged by a properly instructed jury when
the court (a) denied his request for a jury instruction on
self-defense and (b) instructed the jury on flight; (2) the
trial court abused its discretion when it denied his motion
to strike the complainant's testimony after the
complainant admitted that he violated the court's
sequestration order; and (3) his conviction must be vacated
due to the lack of proof of intent to harm the complainant.
Petitioner alleges that he presented these issues to the
state courts on direct review.
the Court ordered the State to file a responsive pleading,
Petitioner filed a motion to hold his case in abeyance while
he exhausts state remedies for five new claims. The Court
understands the unexhausted claims to allege that: (1)
Petitioner's trial attorney failed to present a
substantive defense when he advanced a self-defense theory,
but prevented Petitioner from testifying and also failed to
call credible witnesses to establish a claim of self-defense;
(2) the trial court erred when it refused to re-instruct the
jury on the elements of the crime after the jury foreman
requested a re-instruction on the elements; (3) the trial
court and prosecutor violated Michigan Rule of Evidence
404(b) when they admitted prejudicial “other
acts” despite Petitioner's objections to the
evidence; (4) Petitioner's trial attorney was ineffective
because he failed to conduct a reasonable investigation and
coerced Petitioner into not testifying; and (5)
Petitioner's appellate attorney rendered ineffective
assistance when she failed to conduct a post-conviction
investigation, failed to interview witnesses, failed to file
a motion to correct the state-court record, and refused to
raise a claim of ineffective assistance of trial counsel. The
State has not filed an answer to Petitioner's motion, and
its answer to the habeas petition currently is not due until
December 20, 2019.
doctrine of exhaustion of state remedies requires state
prisoners to give the state courts an opportunity to act on
their claims before they present their claims to a federal
court in a habeas corpus petition. See 28 U.S.C.
§ 2254(b)(1), (c); O'Sullivan v. Boerckel,
526 U.S. 838, 842 (1999). This requirement is satisfied if
the prisoner “invok[es] 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. Thus, to
properly exhaust state remedies, a prisoner must fairly
present the factual and legal basis for each of his claims to
the state court of appeals and to the state supreme court
before raising the claims in a federal habeas corpus
petition. Wagner v. Smith, 581 F.3d 410, 414-15 (6th
Cir. 2009). A federal district court normally must dismiss a
petition containing any unexhausted claims. Rose v.
Lundy, 455 U.S. 509, 510, 522 (1982).
appears to have exhausted state remedies for the three claims
that he presented to the Court in his habeas petition. He now
wishes to raise five additional issues that he has not
presented to the state courts.
dismissal of Petitioner's habeas petition while he
pursues state remedies for several additional claims could
result in a subsequent petition being barred by the one-year
statute of limitations for habeas petitions. See 28
U.S.C. § 2244(d). As a result of the interplay between
the one-year habeas statute of limitations and
Lundy's dismissal requirement, the Supreme Court
has approved a stay-and-abeyance procedure which permits a
district court to hold a habeas petition in abeyance while
the petitioner returns to state court to exhaust state
remedies for previously unexhausted claims. See
Rhines v. Weber, 544 U.S. 269, 275 (2005).
“Once the petitioner exhausts his state remedies, the
district court [can] lift the stay and allow the petitioner
to proceed in federal court.” Id. at 275-76.
This stay-and-abeyance procedure normally is available when
the petitioner had good cause for the failure to exhaust his
state remedies first in state court, the unexhausted claims
are potentially meritorious, and the petitioner is not
engaged in intentionally dilatory litigation tactics.
Id. at 278. If the prisoner satisfies those
conditions, the district court should stay, rather than
dismiss, the petition. Id.
alleges that his former attorneys and his treatment for
mental illness are “cause” for his failure to
raise his unexhausted claims on direct appeal and that he is
not engaged in intentionally dilatory litigation tactics.
Furthermore, because at least some of Petitioner's
unexhausted claims arguably have potential merit, it would
not be an abuse of discretion to stay this case while
Petitioner pursues additional state-court remedies.
Court recognizes that the Supreme Court's decision in
Rhines addressed a “mixed” petition of
exhausted and unexhausted claims, whereas Petitioner's
pleading contains only presumptively exhausted claims.
District courts, however, “ordinarily have authority to
issue stays, ” id. at 276, and some appellate
courts have applied Rhines' stay-and-abeyance
procedure where the petition was not a “mixed”
petition. See, e.g., Doe v. Jones, 762 F.3d 1174,
1181 (10th Cir. 2014) (concluding that the district court had
discretion to consider a Rhines stay even though the
petitioner filed an “unmixed” petition, because
“a categorical bar on stays for unmixed petitions would
‘unreasonably impair the prisoner's right to
relief' and could ‘effectively end any chance at
federal habeas review' ”) (citations omitted);
Heleva v. Brooks, 581 F.3d 187, 191-92 (3d Cir.
2009) (concluding from the Supreme Court's decision in
Pace v. DiGuglielmo, 544 U.S. 408 (2005), that the
Supreme Court seems to have “open[ed] the door to
utilizing the stay-and-abeyance procedure in at least some
limited circumstances beyond the presentation of a mixed
the Court GRANTS Petitioner's motion to hold his habeas
petition in abeyance and closes this case for administrative
purposes. The State need not file a responsive pleading at
this time, and nothing in this order ...