Williams v. Rapelje

Filing 71

ORDER granting 65 Motion to stay proceedings, closing case, and denying pending motions 62 , 64 , and 70 . Signed by District Judge Stephen J. Murphy, III. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TERRY W. WILLIAMS,

Case No. 2:10-cv-11939

Plaintiff,

HONORABLE STEPHEN J. MURPHY, III

v.
LLOYD W. RAPELJE,
Defendant.
/

ORDER GRANTING PETITIONER'S MOTION
TO STAY PROCEEDINGS [65], CLOSING CASE, AND
DENYING PETITIONER'S REMAINING PENDING MOTIONS [62, 64, 70]
Petitioner Terry W. Williams filed a pro se petition for a writ of habeas corpus
challenging his convictions for first-degree home invasion, being a felon in possession
of a firearm, felonious assault, possession of a firearm during the commission of a
felony, and killing an animal. ECF 47. He was sentenced as a third habitual offender
to 195 to 480 months' imprisonment for first-degree home invasion, 60 to 120 months'
imprisonment for felon in possession, 50 to 96 months' imprisonment for felonious
assault, and 50 to 96 months' imprisonment for killing an animal, to be served
consecutively to 60 months' imprisonment for the felony-firearm conviction.
Petitioner filed four pending motions: (1) a motion to stay proceedings, ECF
65; (2) a motion for an extension of time to respond to the answer and for appointment
of counsel, ECF 64; (3) an amended motion for an evidentiary hearing, ECF 62; and
(4) a motion for an order under Rule 45(g), ECF 70. For the reasons below, the Court
will grant the motion to stay and deny the three other motions.

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DISCUSSION
I.

Motion to Stay
Petitioner asks the Court to stay his habeas petition while he returns to state

court to raise an additional claim based upon newly-discovered evidence. ECF 65.
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 seeks a stay because, although the claims raised in the
petition are exhausted, he would like to raise an additional, unexhausted claim in
state court.
A federal court may stay a federal habeas petition and hold it in abeyance
pending resolution of state court post-conviction motion if (1) dismissal of the habeas
petition would jeopardize the timeliness of a future petitioner; (2) there is good cause
for the petitioner's failure to exhaust the claims; (3) 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, 277–78 (2005).
Williams's unexhausted claim concerns the conviction of a former police officer,
David Hansberry, who worked as the lead investigator in Williams's state court case.
Williams states that Hansberry has been convicted of crimes such as filing false
affidavits for search warrants, theft, and destroying evidence. ECF 65, PgID 2988–
89. Williams recently learned of Hansberry's 2016 convictions. Id. at 2989. Williams
argues that Hansberry's convictions are relevant to his case because they support his
defense that evidence was suppressed or destroyed, the search warrant was invalid,
and that Hansberry improperly developed eyewitness testimony. Id. at 2988–89.
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Williams does not appear to have engaged in dilatory litigation tactics and the
claim is not plainly meritless. Moreover, dismissal of the case could result in the
running of the one-year statute of limitations in 28 U.S.C. § 2254(d). Williams already
filed a post-conviction motion in state court. And a prison generally may file only one
post-conviction motion. Mich. Ct. R. 6.502(G)(1). But an exception exists for newlydiscovered evidence. Mich. Ct. R. 6.502(G). The Court will therefore grant Williams's
motion to stay the case and will hold the petition in abeyance.
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.
To ensure that Williams does not delay in exhausting his state court remedies,
the Court imposes time limits within which he must proceed. See Palmer v. Carlton,
276 F.3d 777, 781 (6th Cir. 2002). Williams must present his claim in state court
within sixty days from the date of this Order. See id. Petitioner must also ask this
court to lift the stay within sixty days of completing state court review. 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." Id. (internal
quotation omitted).
II.

Motion for an Extension of Time and Appointment of Counsel
Williams also filed a motion for an extension of time to respond to Respondent's

answer and for appointment of counsel. ECF 64. But, Williams timely filed a reply
within the time allotted. ECF 66. Therefore, an extension of time is unnecessary.

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Williams also seeks appointment of counsel. Williams does not have an
absolute right to be represented by counsel on federal habeas corpus review. See
Wright v. West, 505 U.S. 277, 293 (1992) (citing Pennsylvania v. Finley, 481 U.S. 551,
555 (1987)). "[A]ppointment of counsel in a civil case is . . . a matter within the
discretion of the court. It is a privilege and not a right." Childs v. Pellegrin, 822 F.2d
1382, 1384 (6th Cir. 1987) (citation omitted). A habeas petitioner may obtain
representation at any stage of the case "[w]henever . . . the court determines that the
interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). The Court determines that
the interests of justice do not require the appointment of counsel.
III.

Remaining Pending Motions
Because the Court is staying the proceedings, Williams's remaining motions

will be denied without prejudice to his right to refile the motions after the stay is
lifted.
ORDER
WHEREFORE, it is hereby ORDERED that Petitioner's motion to stay writ
of habeas corpus [65] is GRANTED.
IT IS FURTHER ORDERED that the habeas petition is STAYED and
further proceedings in this matter are held in ABEYANCE. If Petitioner fails to file
a motion for relief from judgment with the state trial court within sixty days of 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 with the Court within sixty days after the conclusion of the state court
proceedings.
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IT IS FURTHER ORDERED that Petitioner's motion for an extension of
time and to appoint counsel [64] is DENIED.
IT IS FURTHER ORDERED that Petitioner's amended motion for an
evidentiary hearing [62] is DENIED.
IT IS FURTHER ORDERED that Petitioner's motion for order under Rule
45(g) [70] is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court shall CLOSE the
case for statistical purposes only.
SO ORDERED.
s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: July 23, 2019
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on July 23, 2019, by electronic and/or ordinary mail.
s/ David P. Parker
Case Manager

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