Jordan v. Horton
OPINION and ORDER Granting Petitioner's 3 MOTION For a Stay and Directing the Clerk of Court to Close the Case. Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number 17-10729
Honorable Thomas L. Ludington
OPINION AND ORDER GRANTING PETITIONER’S MOTION FOR A STAY AND
DIRECTING THE CLERK OF COURT TO CLOSE THE CASE
Petitioner Joseph Jordan, a state prisoner at the Chippewa Correctional Facility in
Kincheloe, Michigan, recently filed a pro se petition for the writ of habeas corpus under 28
U.S.C. § 2254. ECF No. 1. Simultaneously, he filed a motion to hold his petition in abeyance.
ECF No. 3. The petition challenges Petitioner’s Wayne County, Michigan conviction and
sentence of thirteen to thirty years for armed robbery, Mich. Comp. Laws § 750.529. He raises
two sentencing claims in his habeas petition and also argues that the evidence at trial was
insufficient to sustain his conviction. In his motion to stay proceedings, Petitioner alleges that the
state trial court has not issued a final decision on his sentencing claim. For the reasons given
below, the Court will grant Petitioner’s motion for a stay and hold the habeas petition in
Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of armed
robbery. On February 6, 2014, the trial court sentenced Petitioner to prison for thirteen to thirty
years. In an appeal to the Michigan Court of Appeals, Petitioner challenged the sufficiency of the
evidence at trial and the trial court’s scoring of offense variable 4 of the Michigan sentencing
guidelines. The Michigan Court of Appeals affirmed Petitioner’s conviction and sentence. See
People v. Jordan, No. 320555, 2015 WL 3766797 (Mich. Ct. App. June 16, 2015).
Petitioner alleges that he raised the same issues in the Michigan Supreme Court. On
March 8, 2016, the Michigan Supreme Court reversed the trial court’s judgment in part and
remanded the case to the trial court to determine whether it would have imposed a materially
different sentence under the sentencing procedure described in People v. Lockridge, 870 N.W.2d
502 (Mich. 2015). The Court denied leave to appeal in all other respects because it was not
persuaded to review the remaining issues. See People v. Jordan, 875 N.W.2d 199 (Mich. 2016).
On March 6, 2017, Petitioner filed his habeas petition. He raises the two claims that he
presented to the Michigan Court of Appeals on direct appeal and also argues that his Sixth and
Fourteenth Amendment rights were violated by judicial fact-finding, in violation of Alleyne v.
United States, 133 S. Ct. 2151 (2013). In his motion to stay proceedings, Petitioner asks the
Court to temporarily hold his case in abeyance because the state trial court, on remand, has not
yet made a determination about his sentence, as ordered by the Michigan Supreme Court.
Petitioner states that he filed his habeas petition before exhausting state remedies to avoid having
his federal petition barred by the statute of limitations.
The doctrine of exhaustion of state remedies requires state prisoners to present all their
claims to the state courts before raising their claims in a federal habeas corpus petition. See 28
U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This requirement is
satisfied if the prisoner “invok[es] 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. A federal district court ordinarily must dismiss a “mixed” petition containing both
exhausted and unexhausted claims, “leaving the prisoner with the choice of returning to state
court to exhaust his claims or of amending or resubmitting the habeas petition to present only
exhausted claims to the district court.” Rose v. Lundy, 455 U.S. 509, 510 (1982). However, as
explained in Rhines v. Weber, 544 U.S. 269 (2005),
[t]he enactment of [the Antiterrorism and Effective Death Penalty Act (AEDPA)]
in 1996 dramatically altered the landscape for federal habeas corpus petitions.
AEDPA preserved Lundy’s total exhaustion requirement, see 28 U.S.C. §
2254(b)(1)(A) (“An application for a writ of habeas corpus . . . shall not be
granted unless it appears that . . . the applicant has exhausted the remedies
available in the courts of the State”), but it also imposed a 1-year statute of
limitations on the filing of federal petitions, § 2244(d) . . . .
As a result of the interplay between AEDPA’s 1-year statute of limitations and
Lundy’s dismissal requirement, petitioners who come to federal court with
“mixed” petitions run the risk of forever losing their opportunity for any federal
review of their unexhausted claims. If a petitioner files a timely but mixed
petition in federal district court, and the district court dismisses it under Lundy
after the limitations period has expired, this will likely mean the termination of
any federal review.
Id. at 274–75.
In light of this problem, some district courts have adopted a “stay-and-abeyance”
approach. Id. at 275. Under this approach, a court stays the federal proceedings and holds the
habeas petition in abeyance while the inmate pursues state remedies for his unexhausted claims.
Id. After the state court completes its review of the inmate’s claims, the federal court can lift its
stay and allow the inmate to proceed in federal court. Id. at 275-76.
[I]t 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. In such
circumstances, the district court should stay, rather than dismiss, the mixed
petition. See Lundy, 455 U.S., at 522, 102 S.Ct. 1198 (the total exhaustion
requirement was not intended to “unreasonably impair the prisoner’s right to
relief”). In such a case, the petitioner’s interest in obtaining federal review of his
claims outweighs the competing interests in finality and speedy resolution of
Id. at 278.
Petitioner exhausted state remedies for his challenge to the sufficiency of the evidence,
but he apparently has not yet exhausted state remedies for his sentencing claims. Although the
state court’s docket indicates that the trial court conducted a post-conviction proceeding in
Petitioner’s case on March 14, 2017, see People v. Jordan, No. 13-008896-01-FC (Wayne Cty.
Cir. Ct. Mar. 14, 2017), it is not clear to this Court whether the trial court re-sentenced Petitioner,
reaffirmed its initial sentence, or took some other action on March 14, 2017. Consequently, it is
difficult to say whether the state court proceedings have come to an end and whether the habeas
statute of limitations, 28 U.S.C. § 2244(d), has begun running.
Thus, Petitioner has shown good cause for his failure to exhaust state remedies, and there
is no indication that he is engaged in intentionally dilatory litigation tactics. His interest in
obtaining federal review of his claims outweighs the competing interests in finality and speedy
resolution of his federal petition.
Accordingly, it is ORDERED that Petitioner’s request for a stay and to have his habeas
petition held in abeyance, ECF No. 3, is GRANTED.
It is further ORDERED that the Clerk of Court is DIRECTED to close this case for
It is further ORDERED that, if Petitioner is unsuccessful in state court, he may return to
this Court and file an amended habeas corpus petition and a motion to re-open this case, using
the same case number that appears on this order. An amended petition and motion to re-open this
case must be filed within sixty (60) days of the state courts’ resolution of Petitioner’s claim
about his sentence. Failure to comply with the conditions of this stay could result in the dismissal
of this case. Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014), cert. denied, 135 S. Ct. 1403
Dated: May 16, 2017
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on May 16, 2017.
KELLY WINSLOW, Case Manager
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