United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING MOTION FOR STAY (ECF NO.
2) AND HOLDING PETITION IN ABEYANCE
J. MICHELSON UNITED STATES DISTRICT JUDGE
John Howard, a Michigan state prisoner, filed a petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Howard challenges his convictions for assault with intent to
murder, assault with intent to do great bodily harm less than
murder, and assault with a dangerous weapon. (ECF No. 1,
PageID.1.) He was sentenced to 25 to 40 years'
incarceration for the assault with intent to commit murder
charge and lesser terms for the others. (Id.)
raises seven exhausted claims and four unexhausted claims in
his petition. So Howard filed a motion to hold his habeas
petition in abeyance simultaneously with the petition itself.
(ECF No. 2.) He seeks to return to state court to exhaust the
four unexhausted claims. For the reasons and on the
conditions stated below, the Court will grant the request.
a jury trial in Wayne County Circuit Court. Howard was
convicted of assault with intent to commit murder, Mich.
Comp. Law § 750.83, assault with intent to do great
bodily harm less than murder, Mich. Comp. Law § 750.84,
felonious assault, Mich. Comp. Law § 750.82, and assault
and battery, Mich. Comp. Law § 750.81. He was sentenced
as a fourth habitual offender, Mich. Comp. Law § 769.12,
to concurrent prison terms of 25 to 40 years for assault with
intent to commit murder, 6 to 10 years for assault with
intent to do great bodily harm, 2 to 4 years for the
felonious assault convictions, and time served for the
assault and battery convictions.
appealed his convictions to the Michigan Court of Appeals. He
raised seven issues that represent the exhausted claims in
his current habeas petition. The court affirmed his
convictions in a thorough decision. People v.
Howard, No. 332337, 2018 WL 842893 (Mich. Ct. App. Feb.
13, 2018) (per curiam). The Michigan Supreme Court denied
leave to appeal on October 30, 2018. People v.
Howard, 918 N.W.2d 811 (Mich. 2018). The one-year
statute of limitations for filing a federal habeas petition
began running 90 days later, on Monday, January 28, 2019.
This petition was filed timely on November 20, 2019. (ECF No.
same time, Howard filed a motion to hold his petition in
abeyance pending exhaustion of the following four claims: (1)
the prosecution and trial court erred in indicating that
Howard had a “duty to retreat” and trial counsel
failed to object or to request an appropriate jury
instruction, (2) convictions of assault with intent to murder
(“AWIM”), assault with intent to commit great
bodily harm (“AWIGBH”), and assault and battery
violated the Double Jeopardy Clause, (3) convictions of both
AWIGBH and felonious assault are inconsistent and mutually
exclusive, and (4) appellate counsel provided ineffective
assistance by failing to raise the first three unexhausted
issues. (ECF No. 2, PageID.73.) Howard plans to raise these
issues in a motion for relief from judgment in the state
trial court within thirty days of filing his petition.
(Id.) And he asks the Court to allow him sixty days
to file to file an amended petition following exhaustion of
these claims. (ECF No. 2, PageID.74.)
federal habeas petitioner must first 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. 2009).
federal court may stay a federal habeas corpus proceeding
pending resolution of yet unexhausted state post-conviction
proceedings. 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). This
stay-and-abeyance procedure is appropriate only in
“limited circumstances.” Id. at 277.
However, “it likely would be an abuse of discretion for
a district court to deny a stay and to dismiss a mixed
petition if the petitioner had good cause for his failure to
exhaust, his unexhausted claims are potentially meritorious,
and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.”
Id. at 278. “In such circumstances, the
district court should stay, rather than dismiss, the mixed
petition, ” because “the petitioner's
interest in obtaining federal review of his claims outweighs
the competing interests in finality and speedy resolution of
federal petitions.” Id. This is especially
true where dismissal of the petition may preclude future
consideration of a petitioner's claims in this Court due
to the expiration of the statute of limitations. See 28
U.S.C. § 2244(d)(1); Griffin v. Rogers, 308
F.3d 647, 652 & n.1 (6th Cir. 2002).
Court has not been given much detail, but at this stage,
Howard's unexhausted claims do not appear plainly
meritless. He claims not to have raised them on direct review
due to ineffective assistance of his appellate counsel. The
Court finds no indication that Howard is intentionally
attempting to unfairly and unnecessarily delay this
proceeding. Finally, the time remaining in the limitations
period, less than one month, is short enough that dismissal
of the petition could jeopardize the timely filing of a new
the foregoing, the Court will stay this case and hold
Howard's petition in abeyance. Where, as here, a district
court determines that a stay is appropriate pending
exhaustion, the Supreme Court directs that the court
“should place reasonable time limits on a
petitioner's trip to state court and back.” Rhines,
544 U.S. at 278. Thus, Howard must initiate his state
post-conviction remedies within sixty days of entry of this
Court's order and return to federal court within sixty
days of completing the exhaustion of state court
post-conviction remedies. See Hargrove v. Brigano,
300 F.3d 717, 721 (6th Cir. 2002); Geeter v.
Bouchard, 293 F.Supp.2d 773, 775 (E.D. Mich. 2003).
resume this case, Howard must move the Court to lift the stay
within sixty days of completing the exhaustion of his state