United States District Court, W.D. Michigan, Southern Division
Paul L. Maloney Judge
ORDER TO STAY PROCEEDINGS
Kent U.S. Magistrate Judge
Lee Wyrick (sometimes referred to as
“petitioner”) is a prisoner currently
incarcerated at a Michigan correctional facility. The
Michigan Appellate Defender's Office represents Wyrick
and has filed a second or successive petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. For the
reasons discussed below, this matter will be stayed.
Michigan Court of Appeals summarized the underlying facts as
This case arises out of an incident in which defendant and
Charles Cooper, each holding guns, entered an apartment and
shot three men. Both defendant and Cooper shot their guns and
one man in the apartment died. Much of the evidence at trial
indicated that the man who died was shot by Cooper. After the
shootings, defendant and Cooper took money from the men and
left the apartment. On the following day, the police arrested
defendant and Cooper, who were riding in a stolen car.
Defendant's theory of defense at trial was that he
participated in the robbery and shootings under duress,
fearing that Cooper would kill him if he refused to cooperate
People v. Wyrick, No. 199667, 1998 WL 1991134 at *1
(Mich. App. June 9, 1998).
was convicted of first degree felony murder and other crimes
committed in Kalamazoo County, Michigan on or about October
4, 1996. See “People's Motion for
resentencing pursuant to MCL 769.25a and Request for stay of
proceedings” (ECF No. 12-1, PageID.2723). Specifically,
a jury convicted Wyrick of one count of felony murder, M.C.L.
§ 750.316; two counts of assault with intent to murder,
M.C.L. § 750.83; two counts of armed robbery, M.C.L.
§ 750.529; and three counts of possession of a firearm
during the commission of a felony, M.C.L. § 750.227b.
Wyrick, 1998 WL 1991134 at *1. On November 12, 1996,
the trial court sentenced defendant to life in prison for the
felony murder conviction, twenty to forty years imprisonment
for each of the assault with intent to murder convictions,
fifteen to thirty years imprisonment for each of the armed
robbery convictions, and three concurrent terms of two-years
imprisonment for each of his felony-firearm convictions, to
run prior to his other sentences. Id.; People's
Motion at PageID.2724.
Sixth Circuit summarized later proceedings in its order
authorizing the district court to consider a second or
successive habeas corpus petition:
In 1996, Wyrick, then seventeen years old, was convicted of
one count of first-degree felony murder, two counts of
assault with intent to murder, two counts of armed robbery,
and three counts of possessing a firearm in the commission of
a felony. Wyrick was given a mandatory sentence of life
without the possibility of parole (“LWOP”) for
the first-degree murder conviction. His direct appeal was
unsuccessful. People v. Wyrick, No. 199667, 1998 WL
1991134, at *1 (Mich. Ct. App. June 9, 1998), leave denied,
590 N.W.2d 63 (Mich. 1999). In 2000, Wyrick filed his first
petition for habeas relief. See Wyrick v. Gundy, No.
4:00-cv- 00077 (W.D. Mich. Sept. 18, 2003). That petition was
denied, id., and this court declined to issue a
certificate of appealability. Wyrick v. Gundy, No.
03-2401 (6th Cir. June 10, 2004). Wyrick also made an
unsuccessful attempt at post-conviction relief in state court
through a motion under Michigan Court Rule 6.500. See
People v. Wyrick, 854 N.W.2d 732 (Mich. 2014). Now,
nearly twenty years into his mandatory life sentence, Wyrick
seeks permission to file another habeas petition, arguing
that the Supreme Court's decision in Miller v.
Alabama, 132 S.Ct. 2455 (2012), which holds that
“mandatory life without parole for juvenile homicide
offenders violates the Eighth Amendment, ” renders his
sentence unconstitutional. See Montgomery v.
Louisiana, 136 S.Ct. 718, 726 (2016) (citation omitted).
Before a petitioner can file a second habeas action, he must
obtain permission from this court pursuant to 28 U.S.C.
§ 2244(b). Permission is granted only when the
petitioner makes a prima facie showing that (1) the claim
relies on a previously unavailable and newly created rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, or (2) he has discovered new
evidence that could not have been found previously through
the exercise of due diligence and that, if proven and viewed
in light of the evidence as a whole, would establish by clear
and convincing evidence that no reasonable factfinder would
have found him guilty. 28 U.S.C. § 2244(b)(2),
(b)(3)(C). Wyrick advances along the first path.
There is no dispute that Miller created a new rule
of constitutional law that was unavailable in 2000 when
Wyrick filed his first habeas petition. In
Montgomery, 136 S.Ct. at 33-34, the Supreme Court
made that rule retroactively applicable to cases on
collateral review. See In re Clemmons, 259 F.3d 489,
492-93 (6th Cir. 2001) (citing Tyler v. Cain, 533
U.S. 656, 663 (2001)).
In re: Devon Lee Wyrick, No. 14-2443 (Order) (6th
Cir. March 24, 2016) (ECF No. 68).
because respondent has raised an exhaustion issue, the Court
will address Wyrick's most recent post-conviction motion
for relief from the state judgment. On June 12, 2013, Wyrick,
through counsel, moved for relief from judgment pursuant to
MCR 6.500. Motion for relief (ECF No. 8-27). Wyrick's
requested relief included holding all proceedings in abeyance
until the United States Supreme Court or the Michigan Supreme
Court addressed the retroactive application of
Miller, vacating his mandatory life sentence without
possibility of parole, and taking steps to issue a new and
discretionary sentence. Id. On June 21, 2013,
Wyrick's counsel filed a motion to stay proceedings for
similar reasons. Motion to stay (ECF No. 8-28). The state
trial court denied the motion on July 31, 2013 “for the
reasons stated on the record on July 22, 2013”. Order
(ECF No. 8-30). Those reasons included the following:
The issue, as counsel recognizes, is ultimately whether the
Miller decision will be retroactive or it's
conceivable the Michigan Legislature might take action that
would impact the ultimate potential for parole of the
But, based on the current existing state of the law, and in
particular People v Carp, 294 Michigan Appeals, 472,
2012, the Michigan Court of Appeals has found Miller
not to be retroactive. That means, the court cannot grant a
relief at this point.
I question whether it's appropriate to keep a matter
pending in the hope that the law may change when the law
itself, meaning the procedural rules, permits the defendant
to request relief, if there is a change in the law.
Based on that analysis, I am going to deny the request for a
stay. Based on my initial consideration, I'm denying the