Jones v. Bell

Filing 36

OPINION AND ORDER terminating as moot 32 Motion for guidance;Granting 33 Motion to hold the petition in abeyance, Staying the Petition and further proceedings are held in abeyance.. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

GARRY JONES,
Petitioner,
v.

Case Number: 10-14476

JEFFREY WOODS,
Respondent.
/
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT
OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE
Garry Jones, (“Petitioner”), confined at the Ionia Correctional Facility in Ionia,
Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his conviction for two counts each of armed robbery,1 being a
felon-in-possession,2 and felony-firearm, second offense.3
Petitioner has filed a motion for guidance (Dkt. # 32) and a motion to hold the
petition in abeyance (Dkt. # 33) to permit him to file a post-conviction motion in the state
courts to raise additional claims that are not included in the current petition. For the
following reasons, the court will grant the motion to hold the petition in abeyance and
will stay the proceedings under the terms outlined below in order to permit Petitioner to
complete his post-conviction proceedings in the state courts and exhaust his claims.

1

Mich. Comp. Laws § 750.529; Mich. Stat. Ann. 28.797.

2

Mich. Comp. Laws § 750.224f; Mich. Stat. Ann. 28.421(6).

3

Mich. Comp. Laws § 750.227 (b)(1); Mich. Stat. 28.424(2).

The Court will also terminate the motion for guidance as moot and administratively close
the case.
I. BACKGROUND
Petitioner was convicted of the above offenses following a jury trial in the Wayne
County Circuit Court. Petitioner’s conviction was affirmed on appeal. People v. Jones,
Nos. 281464 and 281465, 2008 WL 5382926, (Mich. Ct. App. Dec. 23, 2008), leave to
appeal denied at 764 N.W. 2d 257 (Mich. 2009).
Petitioner then filed a post-conviction motion for relief from judgment, which was
denied. People v. Jones, Nos. 07-7660-01, 07-7661-01 (Wayne Cty. Cir. Ct., November
12, 2009). The Michigan appellate courts denied Petitioner leave to appeal. People v.
Jones, No. 296332 (Mich. Ct. App. June 10, 2010), leave to appeal denied at 789 N.W.
2d 471 (Mich. 2010).
Petitioner filed a petition for writ of habeas corpus, seeking relief on the following
grounds:
I. Appellant was deprived of his constitutional right to self-representation and due
process under both the state and federal constitutions, where the state trial court
refused to honor appellants request to represent himself.
II. Appellant was deprived of his constitutional right to effective assistance of
counsel and due process under both the state and federal constitutions where
trial counsel did not consult appellant regarding his felony cases until the day of
trial.
III. Appellant was deprived of his constitutional right to the effective assistance of
appellate counsel under both the state and federal constitutions where counsel
failed to raise the above claims submitted in this brief on direct appeal.
IV. The trial court decision denying relief on appellant’s claim of his right to selfrepresentation resulted in a decision that was contrary to, and involved an
unreasonable determination of the facts in light of our U.S. Supreme Court
decision in Faretta v California.
2

On December 19, 2013, this court granted Petitioner a writ of habeas corpus, on
the ground that he had been denied his Sixth Amendment right to self-representation.
Jones v. Bell, No. 2:10-CV-14476, 2013 WL 6729891, at *4-8 (E.D. Mich. Dec. 19,
2013). The court declined to review Petitioner’s remaining claims, finding them to be
moot in light of the fact that the Petitioner had been granted habeas relief on his first
claim. Id.
On August 13, 2015, the Sixth Circuit reversed the court’s judgment and
reinstated Petitioner’s conviction. Jones v. Bell, 801 F.3d 556 (6th Cir. 2015), cert.
denied 136 S.Ct. 878 (2016).
On October 13, 2015, while Petitioner’s petition for writ of certiorari was pending
in the U.S. Supreme Court, the court reopened the case to the active docket.
II. DISCUSSION
Petitioner has asked the court to hold the instant petition in abeyance to permit
him to return to the state courts to exhaust additional claims that are not included in his
current habeas petition.
A federal district court has authority to abate or dismiss a federal habeas action
pending resolution of state post-conviction proceedings. See Brewer v. Johnson, 139 F.
3d 491, 493 (5th Cir. 1998). However, to stay federal proceedings and hold a habeas
petition in abeyance pending resolution of state court proceedings, there must be
exceptional or unusual circumstances. Sitto v. Bock, 207 F. Supp. 2d 668, 676 (E.D.
Mich. 2002); Hudson v. Martin, 68 F. Supp. 2d 798, 800 (E.D. Mich. 1999). A federal
district court may stay fully exhausted federal habeas petitions pending the exhaustion
3

of other claims in the state courts. Nowaczyk v. Warden, N.H. State Prison, 299 F.3d
69, 77-79 (1st Cir. 2002); cf. Bowling v. Haeberline, 246 F. App’x 303, 306 (6th Cir.
2007) (“A ‘court is entitled to delay decision [] when considerations of comity and judicial
economy would be served.’ . . . The fact that [petitioner] had an independent proceeding
pending in state court did not render his federal petition a mixed petition.”) (alteration in
original) (quoting Nowaczyk, 299 F.3d 69 at 83.) The Supreme Court has determined
that for a federal court to stay a federal habeas petition and hold further proceedings in
abeyance pending resolution of state court post-conviction proceedings, there must be
good cause for the failure to exhaust claims and the unexhausted claims cannot be
“plainly meritless.” Rhines v. Weber, 544 U.S. 269, 278 (2005).
The court is aware that Petitioner has already filed one motion for relief from
judgment. Pursuant to Mich. Ct. R. 6.502(G)(1), a criminal defendant in Michigan can
typically file only one motion for relief from judgment with regard to a criminal conviction.
See Banks v. Jackson, 149 F. App’x 414, 418 (6th Cir. 2005); Hudson v. Martin, 68 F.
Supp. 2d at 800 (citing to People v. Ambrose, 459 Mich. 884; 587 N. W. 2d 282 (1998)).
However, Mich. Ct. R. 6.502(G)(2) states that a defendant may file a second or
subsequent motion based on a retroactive change in law that occurred after the first
motion for relief from judgment or a claim of new evidence that was not discovered
before the first such motion. Banks, 149 F. App’x at 418; Hudson, 68 F. Supp. 2d at
800-01. Petitioner alleges in his motion that he has newly discovered evidence in
support of the claims that he wishes to raise in a second motion for relief from judgment.
Because there is some likelihood that the Michigan courts might permit Petitioner to file
a second post-conviction motion for relief from judgment pursuant to the newly
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discovered evidence exception contained in Mich. Ct. R. 6.502(G)(2), a procedural bar
to Petitioner filing such a second motion is not clearly applicable, therefore, the court will
grant Petitioner a stay of proceedings to permit him to attempt to exhaust with the state
courts the claims contained in his second motion for relief from judgment. See Banks,
149 F. App’x at 419-20.
Petitioner’s claims do not appear to be “plainly meritless.” Wagner v. Smith, 581
F. 3d 410, 419 (6th Cir. 2009). Because any new claims that Petitioner wishes to
present to the state courts appear to be based on newly discovered evidence, Petitioner
has shown good cause for failing to raise these claims sooner. See U.S. ex rel. Strong
v. Hulick, 530 F. Supp. 2d 1034, 1043 (N.D. Ill. 2008). Furthermore, it does not appear
that Petitioner engaged in “intentionally dilatory tactics.” Rhines, 544 U.S. at 278.
Even where 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.” Rhines, 544 U.S. at 278. To ensure
that there are no delays by Petitioner in exhausting his state court remedies, the court
will impose upon Petitioner time limits within which he must proceed with his state court
post-conviction proceedings. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002).
Petitioner must present his claims in state court within ninety days from the date of this
Order. He must also ask the court to lift the stay within ninety days of exhausting his
state court remedies. “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[.]” Id., at 781 (internal
quotation omitted).

5

The Michigan Court Rules furnish a process by which Petitioner may raise his
unexhausted claims. Petitioner may file a motion for relief from judgment in the Wayne
County Circuit Court pursuant to Michigan Court Rule 6.500 et seq., which allows the
trial court to appoint counsel, seek a response from the prosecutor, expand the record,
permit oral argument, and conduct an evidentiary hearing on Petitioner’s claims.
Petitioner may appeal the trial court’s disposition of his motion for relief from judgment
to the Michigan Court of Appeals and Michigan Supreme Court, and he may thereafter
file a petition for writ of certiorari in the United States Supreme Court. See Nasr v.
Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997). Petitioner, in fact, would be required
to appeal the denial of his post-conviction motion to the Michigan Court of Appeals and
the Michigan Supreme Court in order to properly exhaust the claims that he would raise
in his post-conviction motion. See e.g. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D.
Mich. 2002).
To obtain relief in state court, he will have to show cause for failing to raise his
unexhausted claims on direct review and resulting prejudice or a significant possibility of
innocence. See Mich. Ct. R. 6.508(D)(3). He would have to make a similar showing
here if the court concluded that there was no state remedy to exhaust. Gray v.
Netherland, 518 U.S. 152, 161-62 (1996); Hannah v. Conley, 49 F.3d 1193, 1195-96 n.3
(6th Cir.1995). Petitioner’s unexhausted claims should be addressed to, and considered
by, the state courts in the first instance so the state court will have an opportunity to
decide whether he has established “cause” for his failure to present these claims on
direct review.
III. CONCLUSION
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IT IS ORDERED that Petitioner’s motion to hold the petition in abeyance (Dkt. #
33) is GRANTED, the habeas petition is STAYED, and further proceedings in this
matter are HELD IN ABEYANCE.
IT IS FURTHER ORDERED that, as a condition of this stay, Petitioner shall file a
motion for relief from judgment in the state trial court within ninety (90) days of the date
of this order. If Petitioner is unsuccessful in state court and wished to return to federal
court, he must file a motion to lift the stay and an amended petition in this court within
ninety (90) days after the conclusion of the state court proceedings.
IT IS FURTHER ORDERED that Petitioner’s motion for guidance (Dkt. # 32) is
TERMINATED as moot.
IT IS FURTHER ORDERED that the Clerk of Court will ADMINISTRATIVELY
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.

S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: April 8, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, April 8, 2016, by electronic and/or ordinary mail.
S/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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