Roche v. Rewerts

          ORDER GRANTING PETITIONER'S APPLICATION TO PROCEED IN FORMA PAUPERIS T61 GRANTING HIS REQUEST TO HOLD HIS HABEAS PETITION IN ABEYANCE ML AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES

          VICTORIA A. ROBERTS, UNITED STATES DISTRICT JUDGE.

         This matter initially came before the Court on petitioner Terrell Dejuan Roche's motion to hold his habeas corpus petition in abeyance. See Mot., ECF No. 1. Petitioner did not submit a habeas corpus petition with his motion, and he did not pay the filing fee or apply for permission to proceed in forma pauperis. Accordingly, the Court ordered him to show cause why the Court should not dismiss this action. See 5/24/19 Order, ECF No. 3. Petitioner then filed a response to the Court's order to show cause, ECF No. 4, a habeas corpus petition, ECF No. 5, and an application to proceed in forma pauperis, ECF No. 6. Petitioner has cured procedural deficiencies, and he still wants the Court to hold his petition in abeyance while he exhausts state remedies.

         The Court grants Petitioner's motion for a stay, holds his habeas corpus petition in abeyance, and closes this case for administrative purposes.

         I. Background

         In 2014, a jury In Genesee County Circuit Court found Petitioner guilty of first-degree murder, second-degree arson, and felony firearm. The state trial court sentenced Petitioner to life imprisonment for the murder conviction, twenty to forty years in prison for the arson conviction, and two years for the felony-firearm conviction.

         On appeal to the Michigan Court of Appeals, Petitioner raised issues regarding trial testimony and evidence admitted at trial, the prosecutor's conduct, and trial counsel. In a pro se supplemental brief, Petitioner also claimed that he was unable to confront the expert who prepared a lab report.

         The Michigan Court of Appeals rejected these claims and affirmed Petitioner's convictions. See People v. Roche, No. 323555, 2016 WL 2731063 (Mich. Ct. App. May 10, 2016). Petitioner alleges that he raised the same issues in the Michigan Supreme Court, which denied leave to appeal on July 25, 2017; it was not persuaded to review the issues. See People v. Roche, 500 Mich. 1057; 898 N.W.2d 213 (2017).

         Petitioner then raised new issues in a motion for relief from judgment. The state trial court denied Petitioner's motion, and while his appeal from the trial court's decision was pending in the Michigan Court of Appeals, Petitioner commenced this action by filing his motion to hold his petition in abeyance. See Mot., ECF No. 1. As noted above, Petitioner did not file a habeas corpus petition with his motion, and he did not pay the filing fee or ask to proceed In forma pauperis. Accordingly, on May 24, 2019, the Court ordered Petitioner to show cause why his case should not be dismissed. See 5/24/19 Order, ECF No. 3.

         On June 11, 2019, Petitioner filed a response to the Court's order to show cause, ECF No. 4, a pro se petition for the writ of habeas corpus, ECF No. 5, and an application to proceed in forma pauperis, ECF No. 6. Meanwhile, the Michigan Court of Appeals denied leave to appeal the trial court's decision on Petitioner's motion for relief from judgment. See People v. Roche, No. 346298 (Mich. Ct. App. Apr. 23, 2019). Petitioner's appeal to the Michigan Supreme Court is pending in that court. See https://courts.Michigan.gov/opinions_orders/Pages/CaseInquiry.aspx?^[1]

         II. Discussion

         In his response to the Court's order, Petitioner alleges that his failure to submit a habeas petition and either the filing fee or an application to proceed in forma pauperis was due to faulty advice from a prison legal writer. Petitioner states that he does not have a history of dilatoriness, bad faith, or failure to prosecute. He also alleges that neither the respondent, nor the Court, will be prejudiced by a small delay. He urges the Court to grant his application to proceed in forma pauperis, to stay this case, and to hold his habeas petition in abeyance.

         A. The Application to Proceed In Forma Pauperis

         Petitioner's application to proceed in forma pauperis and the attached summary of his prison trust fund account indicate that his only income in the past twelve months was $91.00 from family and friends. He had $28.32 in his prison trust fund account as of June 4, 2019. See Application to Proceed In Forma Pauperis, ECF No. 6. The Court concludes that Petitioner is indigent and that he should be permitted to proceed in forma pauperis. Accordingly, the Court grants Petitioner's application to proceed without prepaying fees or costs, ECF No. 6.

         B. The ...