Thomas v. McKee

Filing 4

ORDER Granting Petitioner's 2 Motion to Stay Proceedings and Administratively Closing Case. Signed by District Judge Lawrence P. Zatkoff. (CGre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HAROLD JUAN THOMAS,
Case Number: 2:11-CV-10653

Petitioner,
v.

HON. LAWRENCE P. ZATKOFF

KENNETH MCKEE,
Respondent.
/
ORDER GRANTING PETITIONER’S MOTION TO STAY PROCEEDINGS AND
ADMINISTRATIVELY CLOSING CASE
Petitioner Harold Juan Thomas is a state inmate presently incarcerated at the Bellamy Creek
Correctional Facility in Ionia, Michigan, pursuant to convictions for armed robbery and resisting
arrest. He has filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging
these convictions. He also has filed a Motion to Stay Proceedings and Hold Petition for Writ of
Habeas Corpus in Abeyance because currently he has a motion pending in the trial court challenging
his convictions on a claim not previously raised in state court.
I. Background
Following a jury trial in Oakland County Circuit Court, Petitioner was convicted of armed
robbery and resisting arrest. On July 24, 2008, he was sentenced to five to 15 years in prison for the
resisting arrest conviction and 15 to 40 years in prison for the armed robbery conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, claiming that the
prosecutor abused his discretion by charging defendant in the alternative with both armed robbery
and bank robbery. The Michigan Court of Appeals affirmed Petitioner’s convictions. People v.

Thomas, No. (Mich. Ct. App. May 19, 2009).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court raising the
same claims raised in the court of appeals. The Michigan Supreme Court denied leave to appeal.
People v. Browning, 485 Mich. 928 (Oct. 26, 2009).
Petitioner has now filed the pending petition for a writ of habeas corpus. He raises the same
claims raised in state court. He simultaneously filed a Motion to File Protective Petition.
II. Analysis
Petitioner asks the Court to hold these proceedings in abeyance because he has discovered
several additional claims that he would like to raise in this petition, but he must exhaust those claims
in state court before raising them in this petition.
A prisoner who has not yet exhausted his or her state court remedies may file a “‘protective’
petition in federal court and ask[] the federal court to stay and abey the federal habeas proceedings
until state remedies are exhausted.” Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), citing Rhines
v. Weber, 544 U.S. 269 (2005). The “stay-and-abeyance” procedure is available provided there is
good cause for failure to exhaust claims and that the unexhausted claims are not “plainly meritless.”
Rhines, 544 U.S. at 278.
Petitioner states that his unexhausted claims were not presented in state court because they
are newly discovered and because his attorney was ineffective. An appellate attorney cannot be
expected to raise his own ineffective assistance on appeal. Combs v. Coyle, 205 F.3d 269, 276 (6th
Cir. 2000). Thus, the Court finds that Petitioner has asserted good cause for failing previously to
present these claims to the Michigan Court of Appeals. In addition, the Court finds that these claims
are not “plainly meritless” and that Petitioner has not engaged in intentionally dilatory tactics. See
Rhines, 544 U.S. at 277-78. Therefore, the Court stays further proceedings in this matter pending

Petitioner’s exhaustion of the unexhausted claims.
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 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. 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.” Palmer, 276 F.3d at 781 (internal quotation omitted).
III. Conclusion
Accordingly, it is ORDERED that Petitioner’s “Motion to File Protective Petition” is
GRANTED. 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 from 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 in
this Court within sixty days after the 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]