Childs v. Lafler

Filing 10

AMENDED OPINION and ORDER Re-Opening Case, Dismissing 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DONALD CHILDS aka
DONALD CHARLES,
Petitioner,
CASE NO. 2:07-CV-11768
HONORABLE SEAN F. COX

v.
BLAINE LAFLER,
Respondent.
____________________________________/

AMENDED OPINION AND ORDER RE-OPENING CASE, DISMISSING PETITION
FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Michigan prisoner Donald Childs aka Donald Charles (“Petitioner”) filed a pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in 2007 challenging his 2003 convictions
for assault with intent to commit murder, felonious assault, felon in possession of a firearm, and
possession of a firearm during the commission of a felony, which were imposed following a jury
trial in the Wayne County Circuit Court. Petitioner was sentenced to 23 years nine months to 50
years imprisonment on the assault with intent to commit murder conviction, a concurrent term of
one to four years imprisonment on the felonious assault conviction, a concurrent term of one to five
years imprisonment on the felon in possession conviction, and a consecutive term of five years
imprisonment on the felony firearm conviction.
Following his convictions and sentencing, Petitioner filed an appeal as of right with the
Michigan Court of Appeals, raising claims of prosecutorial misconduct, juror misconduct,
ineffective assistance of trial counsel, and cumulative error. The court affirmed his convictions and

sentences. People v. Donald Charles (aka Donald Childs), No. 252031, 2005 WL 267646 (Mich.
Ct. App. Feb. 3, 2005) (unpublished). Petitioner then filed an application for leave to appeal with
the Michigan Supreme Court, which was denied. People v. Donald Charles (aka Donald Childs),
474 Mich. 871, 703 N.W.2d 810 (Sept. 28, 2005). Petitioner’s motion for reconsideration was also
denied. People v. Donald Charles (aka Donald Childs), 474 Mich. 1022, 708 N.W.2d 420 (Jan. 30.
2006).
Petitioner signed his initial federal habeas petition on April 16, 2007. In that petition, he
raised claims concerning prosecutorial misconduct, juror misconduct, ineffective assistance of trial
counsel, cumulative error, double jeopardy, and ineffective assistance of appellate counsel.
Petitioner then moved to stay the proceedings so that he could exhaust certain claims of
ineffective assistance of trial counsel, double jeopardy, and ineffective assistance of appellate
counsel in the state courts. On May 11, 2007, the Court granted Petitioner’s motion to stay the
proceedings and administratively closed the case. The stay was conditioned on Petitioner presenting
his unexhausted claims to the state courts within 90 days of the Court’s order and, if he was
unsuccessful in the state courts, moving to re-open the case and proceed on an amended petition
within 30 days after the conclusion of the state collateral proceedings. On October 16, 2007, the
Court granted Petitioner an extension of time with regard to the filing of his state court motion for
relief from judgment and deemed it timely filed.
Petitioner now seeks to reopen this case for consideration of his habeas claims on the merit.
Petitioner dated his letter request on March 10, 2016. He provides no information about his
exhaustion of remedies in the state courts nor does he provide an amended petition for consideration.

-2-

The Court shall now re-open the case for the limited purpose of determining whether Petitioner
should be allowed to proceed on his habeas claims.
Petitioner’s request to proceed on his habeas petition must be denied because he failed to
comply with the conditions set forth in the Court’s order staying and administratively closing the
case. The Court conditioned the stay on Petitioner returning to state court within 90 days of
exhausting his claims in the state courts, and then moving to re-open his case on an amended petition
containing his exhausted claims within 30 days. Petitioner has not done so. While he apparently
returned to the state trial court in a timely fashion (as reflected in this Court’s October 16, 2007
order), and was denied relief from judgment in 2008, see People v. Donald Charles, Case No. 03008352-01-FC (Wayne Co. Cir. Ct. July 9, 2008), he fails to show that he fully exhausted his claims
in the state appellate courts and/or that he has returned to this Court within 30 days of the conclusion
of his state court collateral review proceedings. The Court has not heard from Petitioner for more
than eight years. Given such circumstances, the Court finds that Petitioner has not properly
exhausted his state court remedies and/or has not returned to federal court within 30 days of the
conclusion of those proceedings as previously required by the Court. He has thus failed to comply
with the Court’s May 11, 2007 order and failed to satisfy the conditions of the stay.
Accordingly, the Court DENIES Petitioner’s request to proceed on his habeas claims.
Rather, in accordance with Sixth Circuit precedent, the Court VACATES the stay as of the date it
was entered, May 11, 2007, and DISMISSES the petition for a writ of habeas corpus. See Palmer
v. Carlton, 276 F.3d 777, 780-82 (6th Cir. 2002) (“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.”) (internal quotation omitted). This case is now CLOSED for all purposes.

-3-

Before Petitioner may appeal the Court’s decision, a certificate of appealability must issue.
See 28 U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability may issue “only
if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). When a federal court denies relief on procedural grounds without addressing the
merits of a habeas claim, a certificate of appealability should issue if it is shown that jurists of reason
would find it debatable whether the petitioner states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct in its
procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Reasonable jurists could not
debate the correctness of the Court’s procedural ruling. Accordingly, the Court DENIES a
certificate of appealability. The Court also DENIES Petitioner leave to proceed in forma pauperis
on appeal as an appeal cannot be taken in good faith. See FED. R. APP. P. 24(a).
IT IS SO ORDERED.

Dated: July 8, 2016

S/ Sean F. Cox
Sean F. Cox
U. S. District Judge

I hereby certify that on July 8, 2016, the foregoing document was served on counsel of record via
electronic means and upon Donald Childs via First Class mail at the address below:
Donald Childs 193448
CHIPPEWA CORRECTIONAL FACILITY
4269 W. M-80
KINCHELOE, MI 49784

S/ J. McCoy
Case Manager

-4-