Parker v. Berghuis

Filing 7

OPINION AND ORDER denying 3 Motion to Hold Habeas Proceeding in Abeyance - Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MATTHEW WILLIAM PARKER,
Petitioner,

Civil No. 2:12-CV-12701
Honorable David M. Lawson

v.
MARY BERGHUIS,
Respondent.
_______________________________/
OPINION AND ORDER DENYING MOTION TO HOLD
HABEAS PROCEEDING IN ABEYANCE
The petitioner, Matthew William Parker, presently confined at the E.C. Brooks Correctional
Facility in Muskegon Heights, Michigan, has filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. He was convicted by a jury in the Oakland County Circuit Court of
two counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.50b(b)(1). He was
sentenced on April 8, 2010 to seventeen-and-a-half to fifty years in prison for each conviction, to
be served concurrently. In his petition, the petitioner raises claims regarding jury deliberations,
defense counsel’s failure to request a deadlocked jury instruction, and the trial court’s denial of the
petitioner’s motion for a mistrial.
On June 20, 2012, the petitioner filed a “Motion to File Protective Petition to Stay and Abey
Habeas Corpus Proceedings,” asking the Court to hold his petition in abeyance to give him the
opportunity to exhaust additional claims that are not included in the current petition. Because the
Court believes a stay of proceedings is inappropriate, the petitioner’s motion to hold his petition in
abeyance will be denied.

I.
The petitioner was convicted of the charges mentioned above following a jury trial in the
Oakland County, Michigan circuit court. The petitioner’s convictions were affirmed by the
Michigan Court of Appeals on December 12, 2011 in an unreported decision. People v. Parker, No.
303439 (Mich. Ct. App. Dec. 12, 2011). The petitioner then filed an application for leave to appeal
with the Michigan Supreme Court, which was denied on May 21, 2012. People v. Parker, 491
Mich. 922, 812 N.W.2d 756 (2012).
On June 20, 2012, the petitioner filed the instant application for a writ of habeas corpus. The
petitioner raised the following claims, which the petitioner asserts have been exhausted in state
courts:
[I.] Mr. Parker was denied his state and federal constitutional right to a fair trial, an
impartial jury free from coercion, and the effective assistance of counsel and must
be granted a new trial, where the jury sent a note during deliberations suggesting it
was deadlocked, and later juror #6 revealed that the announced verdict was not her
verdict, yet defense counsel failed to request and the trial court failed to give a
deadlock instruction on either occasion.
[II.] The trial court abused it’s [sic] discretion in denying Mr. Parker’s motion for
mistrial.
Pet. Attachment C. The petitioner seeks to have the case stayed so that he may exhaust additional
claims regarding the effectiveness of his appellate counsel, the adequacy of the jury instructions,
prosecutorial misconduct, subject-matter jurisdiction, the trial court’s handling of the proceedings,
and the constructive denial of trial and appellate counsel.
II.
State prisoners must exhaust available state remedies for their claims before seeking a federal
writ of habeas corpus. 28 U.S.C. § 2254(b)(1); Baldwin v. Reese, 541 U.S. 27, 29 (2004). Because

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habeas petitioners generally are limited to filing only one habeas petition, 28 U.S.C. § 2244(b), they
should include all their claims in one habeas petition.
The claims in the petitioner’s pro se habeas corpus petition appear to be exhausted. If the
petitioner were to file a supplemental brief raising new issues that were not raised in state court, the
Court would be required to dismiss the petition in its entirety, absent unusual or exceptional
circumstances. Rose v. Lundy, 455 U.S. 509, 510 (1982); O'Guinn v. Dutton, 88 F.3d 1409, 1412-13
(6th Cir. 1996).
The petitioner moves the Court to hold his petition in abeyance while he proceeds to exhaust
any additional claims in the state courts. District courts possess authority to issue stays when a stay
would be a proper exercise of discretion. Rhines v. Weber, 544 U.S. 269, 276 (2005). The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) “does not deprive district courts
of that authority, but it does circumscribe their discretion.” Ibid. (internal citation omitted). A stay
of proceedings must be compatible with the AEDPA’s twin purposes of reducing delay in the
execution of criminal sentences and encouraging the finality of state court judgments. Ibid. These
twin purposes must be balanced against the interests served by the total exhaustion rule set forth in
Rose v. Lundy. Ibid. Stay and abeyance are available only in limited circumstances, such as when
the petitioner shows “good cause” for the failure to exhaust claims first in state court, the
unexhausted claims are not plainly meritless, and the petitioner is not engaged in abusive litigation
tactics or intentional delay. Id. at 277-78. Although this Court has held habeas petitions in abeyance
in cases in which the time has run on a petitioner’s statute of limitations and the petition contains
both exhausted and unexhausted claims, it appears that the petition in this case contains only
exhausted claims and the petitioner has sufficient time remaining in his limitations period to exhaust

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his state court remedies on any additional claims and amend his petition before the limitations period
expires. In the alternative, the petitioner could move this court to dismiss his petition without
prejudice, then exhaust his claims and re-file the petition.
The AEDPA amended 28 U.S.C. § 2244 to include a one-year period of limitations for
habeas petitions brought by prisoners challenging state court judgments. See Froman v. Brigano,
346 F.3d 598, 601 (6th Cir. 2003). The one year statute of limitations runs from the date on which
the judgment became final by the conclusion of direct review or the expiration of the time for
seeking such a review. See 28 U.S.C. § 2244(d)(1)(A). A habeas petition filed outside the time
period prescribed by this section must be dismissed. Isham v. Randle, 226 F.3d 691, 694 (6th Cir.
2000) (case filed thirteen days after the limitations period expired dismissed for failure to comply)
abrogated on other grounds by Abela v. Martin, 348 F.3d 164, 172 (6th Cir. 2003) (en banc).
The petitioner’s conviction in this case will become final on August 19, 2012, ninety days
after the Michigan Supreme Court denied the petitioner leave to appeal, when the time for filing a
petition for a writ certiorari in the Supreme Court expires. See Bronaugh v. Ohio, 235 F.3d 280, 284
(6th Cir. 2000). As of today, the petitioner has 395 days remaining before the statute of limitations
expires. The Supreme Court has held that the filing of a federal habeas corpus petition does not
suspend the running of the one-year limitations period under 28 U.S.C. § 2244(d)(2). See Duncan
v. Walker, 533 U.S. 167, 181-82 (2001). However, the limitations period is tolled during the
pendency of a “properly filed” application for state post-conviction or collateral review. 28 U.S.C.
§ 2244(d)(2).

Therefore, if the petitioner properly initiates his state court post-conviction

proceedings before August 19, 2013, he will not lose his federal habeas rights. Because it appears

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that the petitioner has sufficient time to exhaust his state court remedies within the statutory period,
the Court will deny the petitioner’s motion to hold the petition in abeyance.
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 corpus petition. See 28 U.S.C. § 2254(b)(1)(A) and (c); O'Sullivan v. Boerckel, 526 U.S.
838, 844 (1999); McMeans v. Brigano, 228 F.3d 674, 680-81 (6th Cir. 2000); Rust v. Zent, 17 F.3d
155, 160 (6th Cir. 1994). The exhaustion requirement is satisfied if a prisoner invokes one complete
round of the state’s established appellate review process, including a petition for discretionary
review to a state supreme court. O'Sullivan, 526 U.S. at 845. A prisoner “‘fairly presents’ his claim
to the state courts by citing a provision of the Constitution, federal decisions using constitutional
analysis, or state decisions employing constitutional analysis in similar fact patterns.” Levine v.
Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993); see also Prather v. Rees, 822 F.2d 1418, 1420 (6th Cir.
1987) (holding that “[o]rdinarily, the state courts must have had the opportunity to pass on
defendant’s claims of constitutional violations”). A Michigan petitioner must present each ground
to both Michigan appellate courts before seeking federal habeas corpus relief. See Mohn v. Bock,
208 F. Supp. 2d 796, 800 (E.D. Mich. 2002); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.
1990). The petitioner bears the burden of showing that state court remedies have been exhausted.
Rust, 17 F.3d at 160.
The Michigan Court Rules provide a process by which the petitioner may raise his
unexhausted claims. The petitioner may file a motion for relief from judgment 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 the

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petitioner’s claims. The 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. 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).
However, 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); Rust, 17 F.3d at 160. The 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
this claim on direct review.
III.
The Court concludes that the petition may not be held in abeyance because the petition does
not appear to contain unexhausted claims and the petitioner has sufficient time remaining to exhaust
his state court remedies within the limitations period.
Accordingly, it is ORDERED that the petitioner’s motion to file protective petition to stay
and abey habeas corpus proceedings [dkt. #3] is DENIED.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: July 23, 2012

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PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on July 23, 2012.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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