United States District Court, E.D. Michigan, Northern Division
ORDER DENYING PETITIONER'S MOTION TO HOLD HABEAS
PETITION IN ABEYANCE
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
Donte Thomas, a Michigan state prisoner, was convicted of
armed robbery, Mich. Comp. Laws § 750.529, possession of
a firearm during the commission of a felony, Mich. Comp. Laws
§ 750.227b, and felon in possession of a firearm, Mich.
Comp. Laws § 750.224f. He is before this Court seeking a
writ of habeas corpus under 28 U.S.C. § 2254, raising
one ground for relief. (ECF # 1) He represents that he raised
this claim on his direct appeal to the Michigan Court of
Appeals and Michigan Supreme Court. (See id.) Thomas
now seeks to hold the petition in abeyance to allow him to
return to state court to exhaust three additional claims.
(ECF # 8) For the reasons set forth, Thomas's motion will
convictions arise from the armed robbery of Robert Thomas (no
relation to Petitioner) on July 1, 2013 in Detroit. Thomas
was convicted by a jury in Wayne County Circuit Court and, on
January 29, 2014, sentenced to 12 to 30 years for the armed
robbery conviction, 1 to 5 years for the felon-in-possession
conviction, and 5 years for the felony-firearm conviction.
filed an appeal of right in the Michigan Court of Appeals. He
raised two claims: (i) counsel was ineffective in failing to
investigate an important defense regarding the general
fallibility of eyewitness identification; and (ii) the trial
court incorrectly assessed $600 in court costs. The Michigan
Court of Appeals affirmed Johnson's convictions.
People v. Thomas, No. 320405, 2015 WL 4635001 (Mich.
Ct. App. Aug. 4, 2015). Thomas filed an application for leave
to appeal to the Michigan Supreme Court. He raised the same
ineffective assistance of counsel claim presented in the
Michigan Court of Appeals and a new claim arguing he should
be resentenced pursuant to People v. Lockridge, 498
Mich. 358 (2015). The Michigan Supreme Court remanded the
case to the trial court to determine whether it would have
imposed a materially different sentence under the sentencing
procedure established in Lockridge, and, in all
other respects, denied leave to appeal. People v.
Thomas, 499 Mich. 964 (Mich. June 28, 2016).
31, 2017, Thomas filed this habeas corpus petition. He raises
one claim for relief - trial counsel was ineffective in
failing to call an expert witness on the unreliability of
eyewitness identifications. Thomas later filed this motion to
hold his habeas petition in abeyance in order to allow him to
exhaust additional claims in state court.
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) requires a federal habeas petitioner to
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.
has filed a motion to hold these proceedings in abeyance
while he exhausts three additional claims not raised in the
petition: (i) trial court failed to instruct the jury on a
material issue and counsel was ineffective in failing to
object; (ii) trial counsel was ineffective for failing to
object to a witness testifying after violating a
sequestration order, failing to object to the
prosecution's failure to provide advance notice of
character evidence, and failing to investigate and call an
alibi witness; and (iii) appellate counsel was ineffective in
failing to raise these claims on direct appeal.
federal court may stay a federal habeas corpus proceeding
pending resolution of unexhausted claims in state court.
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). But “a stay
and abeyance should be available only in limited
circumstances” because employing stay and abeyance too
frequently “frustrates AEDPA's objective of
encouraging finality by allowing a petitioner to delay the
resolution of the federal proceedings” and
“undermines AEDPA's goal of streamlining federal
habeas proceedings by decreasing a petitioner's incentive
to exhaust all his claims in state court prior to filing his
federal petition.” Id. at 277. A stay may be
appropriate where outright dismissal of a habeas petition
would jeopardize the timeliness of a future petition, there
is good cause for the petitioner's failure to exhaust,
the unexhausted claims are not “plainly meritless,
” and “there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.”
Id. at 278.
will not be granted a stay because the three unexhausted
claims are not pled in his current habeas petition. He
presents only one claim in his habeas petition, specifically
that trial counsel was ineffective in failing to call an
expert witness on the unreliability of eyewitness
identifications. This claim has been fully exhausted and is
ripe for review as part of Thomas's habeas petition.
Thomas never pled the other three claims in his habeas
petition. Nor did he exhaust these three claims in the state
court. If he wishes to later bring them in a habeas petition,
he may seek leave to file a subsequent habeas petition from
the Sixth Circuit. However, proceedings will not be stayed
for his one ripe and fully exhausted claim so that he may
pursue exhaustion of three claims that are not even present
in the habeas petition. Thomas has not demonstrated
“good cause” under Rhines and
accordingly, his motion will be denied.
Petitioner wish to have his habeas petition dismissed so he
may pursue additional, unexhausted claims not contained in
his current habeas petition, he may move for a
non-prejudicial dismissal of his petition within 30 days of
the filing date of ...