United States District Court, E.D. Michigan, Southern Division
Anthony P. Patti Mag. Judge
ORDER GRANTING PETITIONER'S MOTION TO HOLD HABEAS
PETITION IN ABEYANCE 
E. LEVY United States District Judge
a habeas case filed under 28 U.S.C. § 2254. Michigan
state prisoner Nickolas Jonathan Frederick is serving a
lengthy prison sentence for three counts of armed robbery,
Mich. Comp. Laws § 750.529, seventeen counts of assault
with a dangerous weapon, Mich. Comp. Laws § 750.82, and
one count of felony firearm, Mich. Comp. Laws §
petition raises three claims for relief: (1) a witness and
the prosecutor improperly invaded the province of the jury by
identifying Petitioner as the individual in a surveillance
video and counsel was ineffective for failing to object; (2)
the admission of other act evidence denied Petitioner a fair
trial; and (3) the trial court violated due process by
incorrectly scoring several offense variables.
the Court is Petitioner's motion to hold the case in
abeyance so he can exhaust both the claims raised in the
petition and an additional unexhausted claim in the state
courts. (ECF No. 3.) For the reasons explained below, the
Court holds the petition in abeyance and stays the
proceedings to permit Petitioner to exhaust his claims.
his conviction and sentence, Petitioner pursued an appeal of
right. He raised the same claims raised in this petition. The
Michigan Court of Appeals affirmed his conviction and
sentence in an unpublished decision. People v.
Frederick, No. 338656, 2018 WL 4339572 (Mich. Ct. App.
Sept. 11, 2018). The Michigan Supreme Court rejected
Petitioner's application for leave to appeal as untimely.
(See ECF No. 3, PageID.39.)
filed this habeas corpus petition on October 4, 2019. On the
same date, he filed a motion to hold this proceeding in
abeyance pending exhaustion of state-court remedies.
prisoners must exhaust available state remedies for each of
the claims presented in a habeas petition before seeking a
federal writ of habeas corpus. 28 U.S.C. § 2254(b)(1).
Exhaustion requires that the petitioner invoke “one
full round” of the state's appellate review
process. O'Sullivan v. Boerckel, 526 U.S. 838,
845 (1999). Each issue must be presented to both the Michigan
Court of Appeals and the Michigan Supreme Court to satisfy
the exhaustion requirement. Morse v. Trippett, 37
Fed. App'x 96, 103 (6th Cir. 2002). Petitioner seeks a
stay to allow him to exhaust the claims raised in the
petition and to raise a new claim, ineffective assistance of
appellate counsel in state courts.
federal court may stay a federal habeas petition and hold
further proceedings in abeyance pending resolution of state
court post-conviction proceedings if outright dismissal of a
habeas petition would potentially jeopardize the timeliness
of a future petition, there is good cause for the
petitioner's failure to exhaust those claims, the
unexhausted claims are not “plainly meritless, ”
and “there is no indication that the petitioner engaged
in intentionally dilatory litigation tactics.”
Rhines v. Weber, 544 U.S. 269, 278 (2005). The
Rhines decision concerned a mixed habeas petition,
that is, the petition presented claims that had been properly
exhausted in state court and claims that had not.
Id. at 272-73. The petition at issue in this case
raises only unexhausted claims because the claims were never
properly presented to the Michigan Supreme Court. The Sixth
Circuit Court of Appeals has expressed approval of other
circuit court decisions applying the stay-and-abey procedure
to non-mixed petitions containing only unexhausted claims.
Hickey v. Hoffner, 701 Fed. App'x 422, 426 n.5
(6th Cir. 2017).
Court finds a stay is warranted. First, dismissal of this
case while Petitioner pursues state remedies could result in
a subsequent petition being barred by the one-year statute of
limitations found in 28 U.S.C. § 2244(d), because
approximately one month remains of the one-year limitations
period. Second, Petitioner's ineffective assistance of
appellate counsel claim may constitute good cause for failing
to previously exhaust these claims. See Wagner v.
Smith, 581 F.3d 410, 419 n.4, 5 (6th Cir. 2009).
Finally, based upon the present record, the Court cannot
conclude that these claims are plainly meritless or that
Petitioner has engaged in abusive litigation tactics or
intentional delay. Rhines, 544 U.S. at 277-78. Under
these circumstances, it is not an abuse of discretion to stay
this case while Petitioner pursues state remedies.
district court determines that a stay is appropriate pending
exhaustion of state-court remedies, the district court
“should place reasonable time limits on a
petitioner's trip to state court and back.”
Id. at 278. To ensure that Petitioner does not delay
pursuing his state-court remedies, tolling is conditioned on
Petitioner diligently pursuing relief in the state courts by
filing a motion for relief from judgment in the trial court
within sixty days of this order, pursuing a timely appeal in
the state courts if the motion is denied, and then returning
to federal court within sixty days of completing the
exhaustion of his state court post-conviction remedies.
See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.