Childs v. Howes
Filing
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OPINION AND ORDER ORDER STAYING CASE and Directing the Clerk to Close the Case Signed by District Judge Patrick J. Duggan. (KKra)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RAHAAB CHILDS,
Petitioner,
v.
Civil Action No. 2:12-cv-11009
Honorable Patrick J. Duggan
CAROL HOWES,
Respondent.
______________________/
OPINION AND ORDER GRANTING
PETITIONER’S MOTION TO STAY HABEAS PETITION,
STAYING CASE WITH CONDITIONS, AND DIRECTING THE
CLERK TO CLOSE THE CASE FOR ADMINISTRATIVE PURPOSES
Michigan prisoner Rahaab Childs (“Petitioner”) has filed this habeas case under 28
U.S.C. § 2254. Petitioner is a Michigan Department of Corrections’ inmate, currently
housed at the Lakeland Correctional Facility in Coldwater, Michigan, where he is serving
concurrent sentences of twenty-eight to forty years for a second-degree-murder
conviction and three to forty-five years for a felon-in-possession conviction. Petitioner
will serve those sentences after first serving a mandatory two-year sentence for a felonyfirearm conviction. Petitioner was convicted of these offenses on March 23, 2009,
following a jury trial in the Circuit Court for Wayne County, Michigan. He was
sentenced on April 6, 2009, as a habitual offender, fourth offense. On March 6, 2012,
Petitioner filed his habeas petition alleging that he is unconstitutionally incarcerated
because the evidence was insufficient to support his convictions and the prosecutor
committed misconduct. Pending before the Court is his motion to stay the habeas
proceedings, filed October 2, 2012. Petitioner is seeking a stay of these proceedings so
that he may return to the state courts to exhaust additional claims concerning the
effectiveness of trial counsel and his actual innocence.
For the reasons set forth below, the Court grants Petitioner’s motion and stays his
habeas petition, with conditions, so that he may return to the state courts to exhaust his
unexhausted claims.
Background
After he was convicted and sentenced, Petitioner filed a direct appeal with the
Michigan Court of Appeals, raising the same claims raised in his habeas petition. On
September 14, 2010, the Court of Appeals affirmed his convictions and sentences.
People v. Childs, No. 291878, 2010 WL 3564803, at *7 (Mich. Ct. App. Sept. 14, 2010).
Petitioner subsequently filed an application for leave to appeal that decision with the
Michigan Supreme Court, which the Court denied on March 8, 2011. People v. Childs,
488 Mich. 1049, 794 N.W.2d 347 (2011) (Table).
Petitioner neither filed a petition for a writ of certiorari with the United States
Supreme Court nor a motion for relief from judgment with the state trial court. Rather, he
filed the pending habeas petition, signed and dated March 1, 2012.
Discussion
The doctrine of exhaustion of state remedies requires state prisoners to fairly
present their claims to the state courts before raising them in a habeas-corpus petition.
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See 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728,
1732 (1999). For state prisoners in Michigan, this means that they must present each
claim to the Michigan Court of Appeals and the Michigan Supreme Court before filing a
habeas corpus petition containing the claim in federal court. See Wagner v. Smith, 581
F.3d 410, 414 (6th Cir. 2009). Federal district courts possess the authority to issue stays
while a habeas petitioner pursues state remedies for unexhausted claims. Rhines v.
Weber, 544 U.S. 269, 275-76, 125 S. Ct. 1528, 1534 (2005). Stay and abeyance are
permissible when (1) there was good cause for the petitioner’s failure to exhaust his
claims first in state court, (2) the unexhausted claims are not plainly meritless, and (3) the
petitioner is not engaged in abusive litigation tactics or intentional delay. Id. at 277-78,
125 S. Ct. at 1535.
The Michigan Court Rules provide a process through which Petitioner may raise
his unexhausted claims. Petitioner may file a motion for relief from judgment in the state
trial court pursuant to Michigan Court Rule 6.500 et. seq. Following the state court’s
ruling on Petitioner’s motion for relief from judgment, he may then appeal that decision
to the state appellate courts as necessary. Therefore, Petitioner’s unexhausted claims
should first be addressed to, and considered by, the Michigan courts.
The Court finds no indication that Petitioner is engaging in intentional delay or
abusive litigation tactics in requesting a stay. Furthermore, upon an initial review of the
substance of the unexhausted claims, it does not appear that those claims are “plainly
meritless.” Petitioner alleges that counsel was ineffective for failing to file timely
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motions for an expert witness in ballistics and for procurement of the cellphone records of
a witness named Perry Williams. Petitioner alleges that a ballistic expert would have
been able to identify for the jury whether the bullet that killed the victim was fired from a
rifle, as Petitioner stated, or from a handgun, as stated by witness Williams. He also
argues that trial counsel failed to properly investigate his case because had counsel
requested Williams’ cellphone records, counsel would have discovered that he did not
talk with Williams after the death of the victim, as claimed by Williams. Petitioner also
claims that he is innocent of the crimes for which he was convicted.
The Court recognizes that Petitioner filed the pending motion to stay his habeas
petition in order to avoid the consequences of the one-year statute of limitations
applicable to federal habeas petitions under the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). The Court notes that the one-year limitations period applicable
to this habeas action may pose a problem for Petitioner if the Court were to dismiss the
petition to allow for further exhaustion of state remedies. See 28 U.S.C. § 2244(d)(1);
Jimenez v. Quarterman, 555 U.S. 113, 114, 129 S. Ct. at 682 (2009); see also Rhines, 544
U.S. at 278, 125 S. Ct. 1528, 1535 (same). Thus, the Court will stay the petition pending
the exhaustion of Petitioner’s state court remedies as to his additional, unexhausted
claims concerning the effectiveness of trial counsel. The Court finds that Petitioner’s
basis for issuance of a stay comes within the realm of “good cause” under Rhines.
The Supreme Court in Rhines cautioned, however, that a district court’s discretion
in structuring the stay is limited by the timeliness concerns in the AEDPA. The Rhines
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Court also stated that a petition should not be stayed indefinitely, and the stay should be
conditioned on the pursuit of state remedies within a certain time period after the stay is
entered, with the prisoner returning to federal court within a similarly brief period.
Rhines, 544 U.S. at 277-78, 125 S. Ct. at 1534-35. Thus this Court is imposing particular
conditions on the stay.
Conclusion
Based on the above, the Court GRANTS Petitioner’s motion to stay. The
proceedings in this case are STAYED pending Petitioner’s exhaustion of his state court
remedies provided that: (1) Petitioner presents his unexhausted claims to the state court
within sixty (60) days from the date of this Opinion and Order, if he has not done so
already; and (2) Petitioner returns to this Court within sixty (60) days of exhausting his
state court remedies and files under the above-case caption a motion to lift the stay and to
file an amended petition adding the exhausted claims.
To avoid administrative difficulties, the Clerk shall CLOSE this case for statistical
purposes only. Nothing in this order or in the related docket entry shall be considered a
dismissal or disposition of this matter.
SO ORDERED.
Dated: October 22, 2012
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copy to:
Rahaab Childs, #247873
Lakeland Correctional Facility
141 First Street
Coldwater, MI 49036
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