Thomas v. Bauman
Filing
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OPINION and ORDER granting 4 MOTION to Stay 1 Petition for Writ of Habeas Corpus and administratively closing case. Signed by District Judge Bernard A. Friedman. (CMul)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GEOFFREY D. THOMAS, #246764,
Petitioner,
CASE NO. 2:10-CV-15143
HONORABLE BERNARD A. FRIEDMAN
v.
CATHERINE BAUMAN,
Respondent.
/
OPINION AND ORDER GRANTING MOTION TO HOLD PETITION IN ABEYANCE,
STAYING PROCEEDINGS, AND ADMINISTRATIVELY CLOSING CASE
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Geoffrey
D. Thomas (“Petitioner”) was convicted of assault with intent to commit murder, Mich. Comp.
Laws § 750.83, assault with intent to rob while armed, Mich. Comp. Laws § 750.89, felonious
assault, Mich. Comp. Laws § 750.82, felon in possession of a firearm, Mich. Comp. Laws §
750.224f, and four counts of possession of a firearm during the commission of a felony, third
offense, Mich. Comp. Laws § 750.227b, following a jury trial in the Oakland County Circuit
Court in 2006. He was sentenced as a fourth habitual offender, Mich. Comp. Laws § 769.12, to
concurrent terms of 25 to 45 years imprisonment on the assault with intent to commit murder and
assault with intent to rob convictions, 5 to 15 years imprisonment on the felonious assault
conviction, and 5 to 20 years imprisonment on the felon in possession conviction, to be served
consecutively to 10-year terms of imprisonment on the felony firearm convictions.
In his petition, Petitioner raises claims concerning the admission of opinion testimony,
the denial of a mistrial motion, the denial of a pre-trial lineup and the validity of the in-court
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identification procedures, the scoring of his sentencing guidelines, and the denial of sentencing
credit. Respondent has not yet filed an answer to the petition or the state court record. This
matter is before the Court on Petitioner’s motion to hold his habeas petition in abeyance so that
he can return to state court to exhaust his remedies on additional claims concerning the failure to
preserve evidence, the elicitation of perjury, prosecutorial misconduct, the admission of a video
recording, and the effectiveness of trial and appellate counsel.
The doctrine of exhaustion of state remedies requires state prisoners to “fairly present”
their claims as federal constitutional issues in the state courts before raising those claims in a
federal habeas petition. See 28 U.S.C. § 2254(b)(1)(A) and (c); O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); Rust v. Zent, 17 F.3d
155, 160 (6th Cir. 1994). Federal law provides that a habeas petitioner is only entitled to relief if
he can show that the state court adjudication of his claims resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d). The state
courts must be given an opportunity to rule upon all of Petitioner’s claims before he can present
those claims on habeas review. Otherwise, this Court is unable to apply the standard found at 28
U.S.C. § 2254.
The exhaustion requirement is satisfied if a prisoner invokes one complete round of the
state’s established appellate review process. O'Sullivan, 526 U.S. at 845. To satisfy the
exhaustion requirement, the claims must be “fairly presented” to the state courts, meaning that
the petitioner must have asserted both the factual and legal bases for the claims in the state
courts. See McMeans, 228 F.3d at 681; see also Williams v. Anderson, 460 F.3d 789, 806 (6th
Cir. 2006) (citing McMeans). The claims must also be presented to the state courts as federal
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constitutional issues. See Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). For a Michigan
prisoner, each issue must be presented to both the Michigan Court of Appeals and the Michigan
Supreme Court to satisfy the exhaustion requirement. See Welch v. Burke, 49 F. Supp. 2d 992,
998 (E.D. Mich. 1999); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The
burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
The Michigan Rules of Court provide a process through which Petitioner may raise his
unexhausted claims. In fact, Petitioner states that he intends to file a motion for relief from
judgment in the state trial court pursuant to Michigan Court Rule 6.500 et seq. He may then
appeal the trial court’s decision to the state appellate courts as necessary. Petitioner’s
unexhausted claims should first be addressed to, and considered by, the Michigan courts.
A federal district court has discretion to stay a habeas petition to allow a petitioner to
present unexhausted claims to the state courts in the first instance and then return to federal court
on a perfected petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is
available only in “limited circumstances” such as when the one-year statute of limitations
applicable to federal habeas actions poses a concern, and when the petitioner demonstrates “good
cause” for the failure to exhaust state court remedies before proceeding in federal court. the
unexhausted claims are not “plainly meritless,” and the petitioner has not engaged in
intentionally dilatory tactics. Id. at 277.
In this case, Petitioner has shown the need for a stay. He wishes to pursue several new
claims which have not been unexhausted in the state courts. The one-year limitations period
applicable to federal habeas actions could pose a problem if the Court were to dismiss the
petition to allow for further exhaustion of state remedies. See 28 U.S.C. § 2244(d)(1).
Additionally, Petitioner asserts that appellate counsel failed to raise the issues on direct appeal,
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that he did not timely obtain transcripts from counsel, and that he discovered the legal or factual
basis for some of his unexhausted claims after his direct appeals. The Court thus finds that
Petitioner has shown good cause for failing to previously present his unexhausted claims to the
state courts. The Court further finds that the unexhausted claims do not appear to be plainly
meritless and there is no evidence of intentional delay. Therefore, the Court shall hold the
petition in abeyance and stay the proceedings pending Petitioner’s exhaustion of state court
remedies as to his unexhausted claims.
Accordingly,
IT IS ORDERED that Petitioner’s motion to hold the habeas petition in abeyance is
GRANTED and these proceedings are STAYED. The stay is conditioned on Petitioner
presenting his unexhausted claims to the state courts within 60 days of the filing date of this
order by filing a motion for relief from judgment with the trial court. See Hill v. Anderson, 300
F.3d 679, 683 (6th Cir. 2002). The stay is further conditioned on Petitioner’s return to this Court
with a motion to reopen and amend his petition, using the same caption and case number, within
60 days of fully exhausting state remedies. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.
2002) (adopting approach taken in Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001)). Should
Petitioner fail to comply with these conditions, his case may be dismissed. Lastly, this case is
CLOSED for administrative purposes pending compliance with these conditions.
S/Bernard A. Friedman
BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE
Dated: May 20, 2011
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