Gidron v. Davis

Filing 12

OPINION and ORDER Granting in Part and Denying in Part re 10 MOTION to Stay re 1 Petition for Writ of Habeas Corpus and Administratively Close Case. Signed by District Judge Lawrence P. Zatkoff. (CGre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMES GIDRON,
Case Number: 2:09-CV-10493

Petitioner,
v.

HONORABLE LAWRENCE P. ZATKOFF

BARRY DAVIS,
Respondent.
/
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
PETITIONER’S “MOTION TO STAY HABEAS CORPUS PETITION . . .”
AND ADMINISTRATIVELY CLOSE CASE
Petitioner James Gidron filed a pro se petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. Petitioner challenges his convictions for two counts of assault with intent to murder,
second-degree murder, discharging a firearm at a building, felonious assault, and four counts of
felony firearm. Now before the Court is Petitioner’s Motion to Stay Habeas Corpus Petition and
Administratively Close Case Or In the Alternative Allow Petitioner to Expand the Record. For the
reasons stated, the Court will grant the motion and administratively close the matter.
I.
Petitioner pleaded no contest in Saginaw County Circuit Court as set forth above. He was
sentenced to 25 to 50 years in prison for each assault conviction, 23 to 50 years in prison for the
second-degree murder conviction, two to four years in prison for the discharging a firearm at a
building conviction, two to four years in prison for the felonious assault conviction, and two years
for each of the felony-firearm convictions.
Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, raising

the following claim:
I.

The trial court erred by denying defendant’s motion to withdraw plea.

The Michigan Court of Appeals denied leave to appeal. People v. Gidron,, No. 277205
(Mich. Ct. App. May 9, 2007).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court. He raised
the same claim raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave
to appeal. People v. Gidron, 480 Mich. 891 (Mich. Sept. 24, 2007).
Petitioner filed a motion for relief from judgment in the trial court, raising these claims:
I.

By ill-advising Defendant, trial counsel did so induce an involuntary plea
acceptance, thereby rendering ineffective assistance of counsel.

II.

The trial court abused its discretion when it twice denied Defendant’s request for
substitution of counsel.

III.

Defendant satisfies cause and prejudice as set forth in M.C.R. 6.508(D) for each of
the above arguments by proving constitutionally ineffective assistance on the parts
of trial and appellate counsel, violating his Sixth Amendment right to effective
assistance of counsel and Fourteenth Amendment right to due process.

The trial court denied the motion. People v. Gidron, No. 05-026076 (Saginaw County Cir.
Ct. Feb. 25, 2008). Petitioner filed applications for leave to appeal the trial court’s denial in the
Michigan Court of Appeals and Michigan Supreme Court. Both state appellate courts denied leave
to appeal. People v. Gidron, No. 284542 (Mich. Ct. App. July 29, 2008); People v. Gidron, 482
Mich. 1069 (Mich. 2008).
Petitioner then filed a habeas corpus petition. He raises the same claims raised on direct and
collateral review. Now before the Court is Petitioner’s Motion to Hold Habeas Petition in
Abeyance.

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II.
Petitioner has filed a motion to hold the habeas petition in abeyance so that he can return to
the state courts to raise additional claims which have not been exhausted with the state courts. He
claims that newly discovered evidence shows that his attorney was ineffective in providing him
incorrect information upon which he relied in deciding to plead no contest and that his plea,
consequently, was not knowingly or voluntarily entered. Further, he claims that his appellate
attorney was ineffective in failing to discover the newly discovered evidence.
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). Petitioner
states that, while all of the claims presented in his habeas corpus petition have been exhausted, he
would like the petition stayed while he returns to state court to exhaust five additional claims in state
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 outright dismissal of a habeas
petition would jeopardize the timeliness of a future petition, there is good cause for the petitioner’s
failure to exhaust 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).
In this case, the outright 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 time
barred by the AEDPA's statute of limitations. See Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th

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Cir. 2002). The Court finds that outright dismissal of the petition would jeopardize the timeliness
of any future habeas petition.
Petitioner states that his unexhausted claims were not presented in state court because they
are newly discovered. He claims to have decided to enter a plea because his attorney advised him
that his co-defendant had entered a plea deal pursuant to which the co-defendant would testify
against Petitioner. Petitioner states that he did not learn until March 2011 that this information was
incorrect. Additionally, Petitioner argues that his appellate attorney was ineffective in failing to
discover that the predicate for his plea was incorrect.
The Supreme Court did not define “good cause” in Rhines, nor has the Sixth Circuit Court
of Appeals done so. See Bates v. Knab, 2011 WL 2785244, *5 (S.D. Ohio July 15, 2011), citing
Hnatiuk v. Trombley, 2008 WL 3305157 (E.D. Mich. Aug. 11, 2008). A number of federal courts
have concluded that the Rhines good cause requirement in this context is less stringent than that
required for a showing of procedural default. See Lockridge v. Ludwick, 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, 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); Jackson v. Roe, 425 F.3d 654, 662 (9th Cir. 2005) (holding that “good cause”
standard prescribed in Rhines does not require a showing of “extraordinary circumstances”).
Petitioner states that his unexhausted claims were not presented in state court because he did
not discover the factual basis for these claims until after filing his habeas corpus petition. Courts
have found the “good cause” standard satisfied where unexhausted claims are based on recently

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discovered evidence. See Midgett v. Curtin, 2010 WL 457459, *1 (E.D. Mich. Feb. 8, 2010)
(holding petitioner’s contention that unexhausted claims were not presented in state court because
they were newly discovered sufficient to satisfy Rhines “good cause” requirement); Reed v.
Wolfenbarger, 2009 WL 3059135, *3 (E.D. Mich. Sept. 21, 2009) (same); Henderson v. Bell, 2009
WL 1923527, *1 (E.D. Mich. July 9, 2009) (same) ; Leonardos v. Buddress, 2007 WL 1174825, *
3 (N.D. Cal. Apr.19, 2007) (granting stay and finding “good cause” under Rhines, in part, because
petitioner's unexhausted claims were based on recently discovered evidence and “newly discovered
evidence weighs in favor of finding good cause”); Lugo v. Kirkland, 2006 WL 449130, *4 (N.D.
Cal. Feb.22, 2006) (granting stay of petition under Rhines, in part where petitioner demonstrated
“good cause” by showing that new claims were discovered after state appeal process concluded and
petitioner had filed federal petition). Additionally, Petitioner states that the unexhausted claims
were not previously presented in state court because his appellate and trial attorneys were
ineffective. “The alleged ineffectiveness of appellate counsel constitutes ‘good cause’ to justify
holding a habeas petition in abeyance during the petitioner’s return to state court.” Fox v. Curley,
2010 WL 538299, *3 (E.D. Mich. Feb. 10, 2010). The Court finds that Petitioner has asserted good
cause for failing previously to present these claims.
The Court also must determine whether Petitioner’s claims that he seeks to exhaust are
“plainly meritless.” In Rhines, the Supreme Court did not establish a standard for determining
whether a petitioner’s claims are “potentially meritorious.” Most courts applying the standard do
so in conclusory fashion without weighing or even considering the evidence. See Anthony v. Palmer,
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);

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Wengorovius v. Scutt, 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,
2007 WL 4181316, *3 (E.D. Mich. Nov. 27, 2007) (same). See also Woodson v. Smith, 2010 WL
3781579, *4 (N.D. Ohio Sept. 23, 2010) (holding, without further discussion, that petitioner’s
“claims are potentially meritorious in that none of his claims are plainly without merit”); Cueto v.
McNeil, 2010 WL 1258065, *16 (S.D. Fla. March 12, 2010) (collecting cases). In Bartelli v.
Wynder, 2005 WL 1155750, *2 (E.D. Pa. May 12, 2005), the District Court for the Eastern District
of Pennsylvania held that a petitioner’s unexhausted claims were not plainly meritless because they
alleged a violation of petitioner’s constitutional rights that could serve as grounds for granting a writ
of habeas corpus if supported by sufficient facts.
A habeas petitioner may attack a guilty plea on the ground that his plea was rendered
involuntary or unintelligent as a result of ineffective assistance of counsel. See Hill v. Lockhart, 474
U.S. 52, 56-57 (1985). To obtain relief on a claim of deficient advice in connection with a plea
offer, the petitioner must show that if he had received accurate information, he would not have
accepted the plea. Id. Petitioner states that, had counsel not misadvised him, he would have elected
to proceed to trial. This claim, if supported by sufficient evidence, is not plainly meritless.
Finally, given that Petitioner claims to have discovered this evidence in March 2011, and
filed a motion for stay within a few weeks of discovering the evidence, he does not appear to be
engaging in intentionally dilatory litigation tactics. Therefore, the Court stays further proceedings
in this matter pending exhaustion of the unexhausted claims.
The Court notes that Michigan Court Rule 6.502(G)(1) generally permits a defendant to file

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only one motion for relief from judgment. Petitioner already has filed a motion for relief from
judgment. However, Michigan Court Rule 6.502(G)(2) permits a defendant to file a successive
motion for relief from judgment under certain, limited circumstances, including when the defendant
asserts a claim of newly discovered evidence. Therefore, it appears that an avenue for exhaustion
remains available to Petitioner in state court.
When a district court determines that a stay is appropriate pending exhaustion of state court
remedies, the district court “should place reasonable time limits on a petitioner’s trip to state court
and back.” Id. at 278. To ensure that Petitioner does not delay in exhausting his state court
remedies, the Court imposes upon Petitioner time limits within which he must proceed. See Palmer
v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). Petitioner must present his claims in state court
within sixty days from the date of this Order. See id. Further, he must ask this Court to lift the stay
within sixty days of exhausting his state court remedies. See id. “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.” Palmer, 276 F.3d at 781 (internal quotation omitted).
III.
Accordingly, IT IS ORDERED that Petitioner’s Motion to Stay Habeas Corpus Petition and
Administratively Close Case Or in the Alternative Allow Petitioner to Expand the Record [dkt. #
10] is GRANTED IN PART AND DENIED IN PART. The request to stay these proceedings is
GRANTED and the request to expand the record is DENIED WITHOUT PREJUDICE to
Petitioner’s right to seek such relief if and when he seeks leave to reopen this proceeding. Petitioner
shall file a motion for relief from judgment in state court within sixty days from the date of this
Order and a motion to lift the stay and amended petition in this Court within sixty days after the

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conclusion of the state court proceedings.
IT IS FURTHER ORDERED that, to avoid administrative difficulties, the Clerk of Court
close this case for statistical purposes only. Nothing in this order or in the related docket entry shall
be considered a dismissal of this matter. Upon receipt of a motion to lift the stay following
exhaustion of state remedies, the Court may order the Clerk to reopen this case for statistical
purposes.
S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: August 11, 2011
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of record
by electronic or U.S. mail on August 11, 2011.

S/Marie E. Verlinde
Case Manager
[phone]

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