McCray v. Curtin

Filing 17

ORDER denying 14 Petitioner's Motion to Continue Stay. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOURTHERN DIVISION
CHRISTOPHER MCCRAY,
Petitioner,

Civil No. 2:08-CV-15166
HONORABLE DENISE PAGE HOOD

v.
CINDI CURTIN,
Respondent.
____________________________________/
ORDER DENYING PETITIONER'S MOTION TO CONTINUE STAY [DKT. # 14]
Before the Court is Petitioner’s motion to extend the stay that was ordered by this
Court on July 31, 2009. For the reasons stated below, the motion will be denied.
In 2006, Petitioner was convicted in state court of one count of second-degree
murder, two counts of assault with intent to commit murder, and several lesser offenses.
Following a direct appeal in the state courts, Petitioner filed an application for a writ of
habeas corpus in this Court.

The petition contained claims that Petitioner had not

exhausted in his state court appeal. Accordingly, Petitioner moved to hold the petition in
abeyance while he presented his new claims to the state courts in a post-conviction
proceeding. The stay was granted on July 31, 2009, and Petitioner promptly filed for postconviction relief in the state courts on September 8, 2009. On July 25, 2011, the Michigan
Supreme Court denied Petitioner's application for leave to appeal, completing the
exhaustion process for Petitioner's new claims.
Petitioner alleges in his motion that sometime in July or August of 2011, the state
filed additional murder charges against him. Petitioner asserts that one of the surviving
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victims of the original crime died, resulting in the new charges. Petitioner alleges that if the
new charges result in a conviction, it will likely give rise to new claims for him to present in
the instant habeas action.
Nothing prevents a state prisoner from challenging multiple convictions arising out
of the same state court in a single habeas petition. See Rule 2(e) of the Rules Governing
Section 2254 Cases in the United States District Court. Because of the exhaustion
requirement and the statute of limitations, however, the opportunity to challenge multiple
convictions in a single habeas petitioner rarely arises. Beyer v. Litscher, 306 F.3d 504, 508
(7th Cir. 2002). At least one Circuit Court has suggested that allowing such challenges in
a single petition is often times preferable. See Beyer, 306 F.3d at 508, ("When multiple
convictions are amenable to simultaneous challenge joinder might help a federal court
determine whether a particular claim or theory is moot, for if the sentences are concurrent
then an order rejecting a collateral attack on the longer sentence obviates anything else.")
In this case, however, there is no existent second conviction to challenge. Petitioner
is facing new murder charges, but he has not been convicted of those charges, and he can
only speculate that some unspecified constitutional error might occur at a trial that will not
be addressed by the state appellate courts. This case has already been stayed for a
considerable period of time, and to grant the open-ended request by Petitioner would
probably result in several more years of delay. At this point, Petitioner can only speculate
that additional habeas claims will arise.
Even assuming that Petitioner is convicted of a new offense, claims arising from that
conviction could be made the subject matter of a second habeas petition. Hardemon v.
Quarterman, 516 F.3d 272, 276 (5th Cir. Tex. 2008) (A state habeas petitioner is permitted,
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but not required, to challenge separate convictions in a single § 2254 petition). A potential
second habeas petition challenging a new conviction would not be subject to the
requirements of 28 U.S.C. 2244(b), which generally requires permission by the Court of
Appeals before a "second or successive" petition may be filed. See Magwood v. Patterson,
130 S. Ct. 2788 (2010).
Because it appears that Petitioner filed the present motion within 60 days of the
Michigan Supreme Court order denying his application for post-conviction review, he will
be given 60 days from the date of this order to file an amended petition and reopen this
action.
Accordingly, IT IS HEREBY ORDERED that Petitioner's motion is DENIED.
Petitioner will be given sixty (60) days to file an amended petition.
SO ORDERED.

Dated: December 21, 2011

S/Denise Page Hood
Denise Page Hood
United States District Judge

I hereby certify that a copy of the foregoing document was served upon Christopher
McCray, 376263, Oaks Correctional Facility, 1500 Caberfae Highway, Manistee, MI 49660
counsel of record on December 21, 2011, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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