Kennedy v. Rivard
Filing
6
OPINION and ORDER granting 5 MOTION to hold 1 Petition for Writ of Habeas Corpus in Abeyance and Administratively Closing Case. Signed by District Judge Thomas L. Ludington. (SGam)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DOUGLAS A. KENNEDY,
Case Number: 1:12-cv-13244
Honorable Thomas L. Ludington
Petitioner,
v.
STEVEN RIVARD,
Respondent.
/
ORDER GRANTING PETITIONER’S MOTION TO HOLD HABEAS
PETITION IN ABEYANCE AND ADMINISTRATIVELY CLOSING CASE
Petitioner Douglas A. Kennedy is a state inmate at the St. Louis Correctional Facility in
St. Louis, Michigan. He challenges his conviction for second-degree murder pursuant 28 U.S.C.
§ 2254. In addition to his habeas petition, Petitioner has filed a motion to hold habeas petition in
abeyance. The motion will be granted.
I
Petitioner pleaded no contest in Genesee County Circuit Court to second-degree murder
and to being a fourth habitual offender. On January 14, 2011, Petitioner was sentenced to 65 to
100 years in prison. The Court imposed restitution in the amount of $4,152 and $400 in attorney
fees.
Petitioner filed an application for leave to appeal in the Michigan Court of Appeals,
raising three claims. First, Petitioner asserted that the trial court violated the prohibition against
cruel or unusual punishment in sentencing him to a term of imprisonment of 65 to 100 years for
second-degree murder. Second, Petitioner asserted that the trial court abused its discretion in
ordering defendant to pay restitution and court costs, due at the time of sentencing, without
taking into account his indigence and lack of financial resources and without giving him the
opportunity to object. And third, Petitioner asserted that the trial court erred in requiring him to
pay attorney fees without first assessing his ability to pay.
The Michigan Court of Appeals denied leave to appeal for lack of merit in the grounds
presented. People v. Kennedy, No. 143241 (Mich. Ct. App. May 20, 2011). Petitioner filed an
application for leave to appeal in the Michigan Supreme Court, raising the same claims raised in
the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v.
Kennedy, 490 Mich. 874 (Mich. Sept. 26, 2011).
In July 2012, Petitioner filed a § 2254 petition in this Court asserting the same three
claims raised on direct review in state court. The following month, Petitioner moved to hold the
pending petition in abeyance so that he may return to state court to exhaust claims regarding
deprivation of counsel and ineffective assistance of counsel.
II
State 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). In this
case, Petitioner requests that the Court stay the petition while he returns to state court to exhaust
claims not previously asserted in that court.
A federal court may stay a federal habeas petition and hold further proceedings in
abeyance pending resolution of state court post-conviction proceedings if dismissal of a habeas
petition would jeopardize the timeliness of a future petition, there is “good cause” for the
petitioner’s not exhausting 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).
-2-
In this case, the dismissal of the petition, even without prejudice, may preclude future
consideration of Petitioner’s claims in this court due to the expiration of the statute of limitations.
See 28 U.S.C. § 2241(d)(1). Staying a habeas corpus proceeding is appropriate where, as here,
the original petition was timely filed, but a second, exhausted habeas petition may be timebarred. See Hargrove v. Brigano, 300 F.3d 717, 720–21 (6th Cir. 2002).
The Supreme Court did not define “good cause” in Rhines. The Sixth Circuit has not yet
done so either. See Bates v. Knab, No. 2:10–CV–420, 2011 WL 2785244, *5 (S.D. Ohio July
15, 2011) (citing Hnatiuk v. Trombley, No. 06-13880, 2008 WL 3305157 (E.D. Mich. Aug. 11,
2008)). A number of federal district courts, however, have concluded that the Rhines good cause
requirement is less stringent than the good cause showing required in the context of procedural
default. See Lockridge v. Ludwick, No. 09-10145, 2009 WL 5217592, *3 (E.D. Mich. Dec. 28,
2009) (holding that “good cause under Rhines is something less than the cause needed to excuse
a procedural default”); Bryant v. Greiner, No. 02Civ.6121(RMB)(RLE), 2006 WL 1675938, *5
(S.D. N.Y. June 15, 2006) (same); Rhines v. Weber, 408 F. Supp. 2d 844, 849 (D.S.D. 2005) (on
remand, applying a more expansive definition of “good cause” than the showing needed for
cause to excuse a procedural default).
In this case, Petitioner appears to raise ineffective assistance of counsel as cause for his
failure to exhaust these claims previously. An appellate attorney cannot be expected to raise his
own ineffective assistance on appeal. Combs v. Coyle, 205 F.3d 269, 276 (6th Cir. 2000).
Petitioner has thus satisfied the good cause standard.
The Court also must determine whether Petitioner’s unexhausted claims are “plainly
meritless.” In Rhines, the Supreme Court did not establish a standard for determining whether a
petitioner’s claims are “plainly meritless.” Most courts applying the standard do so with only a
-3-
light review of the merits. E.g., Anthony v. Palmer, No. 10–CV–13312, 2011 WL 1532162, *2
(E.D. Mich. Apr. 22, 2011) (granting stay under Rhines and holding that unexhausted claims are
potentially meritorious with no analysis of merits of the claims); Wengorovius v. Scutt, No. 09–
CV–13228, 2009 WL 2849577, *3 (E.D. Mich. Sept. 1, 2009) (granting stay and determining
that unexhausted claims are not “plainly meritless” based upon an “initial review of the
substance of the unexhausted issues” with no further discussion or analysis); Wright v. Trombley,
07-CV-10965, 2007 WL 4181316, *3 (E.D. Mich. Nov. 27, 2007) (same); see also Cueto v.
McNeil, No. 08-22655-CIV, 2010 WL 1258065, *16 (S.D. Fla. March 12, 2010) (collecting
cases). A claim is not plainly meritless if it alleges a constitutional violation that, if supported by
sufficient evidence, would authorize issuance of a writ of habeas corpus. Bartelli v. Wynder, No.
Civ.A. 04-CV-3817, 2005 WL 1155750, *2 (E.D. Pa. May 12, 2005).
A violation of the right to counsel, if supported by sufficient facts, may authorize
issuance of a writ of habeas corpus. Without expressing an opinion on whether Petitioner’s
claims actually have merit, based on the current pleadings the Court cannot conclude that
Petitioner’s claims are “plainly meritless.”
Finally, Petitioner does not appear to be engaging in intentionally dilatory litigation
tactics. Accordingly, the case will be stayed to permit Petitioner to exhaust his unexhausted
claims.
When a district court determines that a stay is appropriate pending resolution of state
court remedies, the district court “should place reasonable time limits on a petitioner’s trip to
state court and back.” Rhines, 544 U.S. at 278.
In this case, Petitioner will be directed to present his claims in state court within sixty
days from the date of this order. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002).
-4-
Petitioner will be further directed to request a lift of the stay imposed in this case within sixty
days of completing state court review. See id. Not doing so, Petitioner is cautioned, may result
in the petition being dismissed. As the Sixth Circuit instructs: “If the conditions of the stay are
not met, the stay may later be vacated nunc pro tunc as of the date the stay was entered, and the
petition may be dismissed.” Id. (internal quotation omitted).
Accordingly, it is ORDERED that Petitioner’s motion to hold habeas petition in
abeyance (ECF No. 5) is GRANTED.
It is further ORDERED that the habeas petition (ECF No. 1) is STAYED and further
proceedings in this matter are held in ABEYANCE.
It is further ORDERED that if Petitioner fails to file a motion for relief from judgment
with the state trial court within sixty days from the date of this order, the Court will dismiss the
petition for writ of habeas corpus without prejudice. Petitioner shall file a motion to lift the stay
and an amended petition in this Court within sixty days after the conclusion of the state court
proceedings.
It is further ORDERED that, to avoid administrative difficulties, the Clerk of Court shall
administratively close this case.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: October 22, 2012
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney of record herein by electronic means and upon
Douglas Kennedy #207632, St. Louis Correctional Facility, 8585 N.
Croswell Road, St. Louis, MI 48880 first class U.S. mail on October 22,
2012.
s/Tracy A. Jacobs
TRACY A. JACOBS
-5-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?