Marion v. Berghuis

Filing 7

OPINION AND ORDER Granting Petitioner's Motion To Stay Proceedings and Hold Habeas Petition in Abeyance; Denying Petitioner's Motion to Appoint Counsel; and Directing Clerk to Administrately Close Case 4 Motion to Appoint Counsel ; granting 2 Motion to Stay. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ALLEN MARION,
Case No. 12-cv-13127
Petitioner,
HONORABLE VICTORIA A. ROBERTS
v.
MARY BERGHUIS,
Respondent.
/

OPINION AND ORDER (1) GRANTING PETITIONER'S MOTION
TO STAY PROCEEDINGS AND HOLD HABEAS PETITION IN ABEYANCE;
(2) DENYING PETITIONER'S MOTION TO APPOINT COUNSEL; AND
(3) DIRECTING CLERK TO ADMINISTRATIVELY CLOSE CASE
This is a habeas corpus action brought pro se by a state prisoner under 28 U.S.C. §
2254. Allen Marion, a Michigan prisoner confined in the Earnest C. Brooks Correctional
Facility, Muskegon Heights, Michigan, challenges his jury trial convictions for second
degree murder, felony firearm, and possession of a firearm by a felon. Petitioner was
sentenced in July, 2009, to prison for: (1) 50 to 75 years for the murder conviction; (2) one
to five years for the possession of a firearm conviction; and (3) consecutive two years for the
felony firearm conviction.
This matter is before the Court on the Petitioner's motions to stay proceeding and hold
his habeas petition in abeyance pending exhaustion of state remedies and the appointment
of counsel.
The Court grants Petitioner's motion to stay the proceedings but denies his request to
appoint counsel.

I. BACKGROUND
Petitioner was convicted of the shooting death of Joseph Day. Day was shot in Detroit,
Michigan, on March 1, 2006. Related charges against Petitioner arose after federal
authorities arrested Donald "Ricardo" Sims on drug charges in May 2006. Sims then offered
information that he witnessed the Day shooting nine months earlier. Sims was the primary
witness against Petitioner at trial.
A jury convicted Petitioner; he filed a direct appeal with the Michigan Court of
Appeals. This direct appeal claimed: (1) admission of testimony of the officer in charge
violated the prohibition on hearsay and the Confrontation Clause; (2) the trial court erred in
admitting evidence of a shooting that occurred at the home of a key witness' grandmother's
house shortly before the preliminary examination; (3) the trial court erred in failing to give
a limiting instruction on the use of evidence of the shooting; (4) statements made by the
prosecutor during closing constituted misconduct; (5) insufficient evidence; and (6) the
prosecutor committed misconduct by suppressing evidence and delaying prosecution. The
Michigan Court of Appeals affirmed Petitioner's convictions in an unpublished, per curiam,
opinion. People v. Marion, No. 293440 (Mich. App. Jan. 11, 2011). The Michigan Supreme
Court denied leave to appeal on July 25, 2011. People v. Marion, 489 Mich. 991 (2011).
Petitioner filed his federal petition on July 17, 2012. The petition asserts: (1) the
prosecutor committed fraud upon the court by failing to disclose benefits offered in exchange
for witness testimony, by introducing false ballistic evidence, and by presenting false
testimony; (2) Petitioner's trial counsel was ineffective for failing to impeach Sims and for
failing to file a motion for a directed verdict; (3) the prosecutor committed misconduct by

2

providing consideration to a jailhouse informant; and (4) trial counsel was ineffective for:
(a) failing to investigate alibi witnesses, and (b) failing to prepare a defense. Petitioner
acknowledges that he has not exhausted these claims in state court.
Petitioner filed a motion to hold his habeas petition in abeyance while he returns to state
court to exhaust the unexhausted claims asserted in his federal habeas petition. Petitioner
also filed a motion to appoint counsel.
II. ANALYSIS
A. Motion for Stay
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 must first
exhaust all state remedies. 28 U.S.C. § 2254(b)(1). Exhaustion requires the prisoner to give
the state courts a full fair opportunity to resolve any federal constitutional issues “by
invoking one complete round of the State's established appellate review process.” O'Sullivan
v. Boerckel, 526 U.S. 838, 845 (1999); see Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
Petitioner states he has not exhausted state remedies with regard to claims of
prosecutorial misconduct and ineffective assistance of counsel. 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, 278 (2005)). Where a petitioner has good cause for failing to exhaust, his
unexhausted claims are potentially meritorious, and there is no indication of dilatory tactics,
the district court should generally stay, rather than dismiss, a mixed petition. Pace, 544 U.S.

3

at 417 (citing Rhines, 544 U.S. at 278). “A petitioner's reasonable confusion about whether
a state filing would be timely will ordinarily constitute ‘good cause’ for him to file in federal
court.” Id. (citing Rhines, 544 U.S. at 278).
Petitioner filed the pending petition and the motion to hold it in abeyance to avoid the
consequences of the one-year statute of limitations applicable to federal habeas petitions.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) establishes a one-year
time limit for a state prisoner to file a federal habeas corpus action. Jimenez v. Quarterman,
555 U.S. 113, 114 (2009); 28 U.S.C. § 2244(d)(1). The time limit runs from the latest of four
periods, usually from the “date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.”

28 U.S.C. §

2244(d)(1)(A). Under this provision, the one-year time period begins to run when the time
for filing a petition for writ of certiorari with the United States Supreme Court expires, when,
as here, the prisoner does not file a petition for writ of certiorari. Jimenez, 555 U.S. at 119.
Petitioner asserts that he will file with the trial court a motion for post-conviction relief.
The AEDPA statute of limitations is tolled during the period any “properly filed” motion for
post-judgment relief is pending in state court. See 28 U.S.C. § 2244(d)(2) (“[t]he time during
which a properly filed application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be counted toward any period
of limitation under this subsection”). If, however, a state post-conviction motion is not
properly filed in accordance with state law, the pendency of the motion does not trigger
statutory tolling. See Pace, 544 U.S. at 417 (untimely state post-conviction petition not
“properly filed,” does not toll statute of limitations). So, while a properly filed motion for

4

relief from judgment tolls the limitations period, the Court cannot at this point determine
whether the state court will determine that Petitioner's motion was properly filed. Even if the
motion is ultimately determined to have been properly filed, little, if any, time remains of the
one-year limitation period.
So, a stay is appropriate. Petitioner potentially has good cause for his failure to exhaust,
his unexhausted claims are potentially meritorious, and there is no indication that he engaged
in intentionally dilatory litigation tactics. The statute of limitations for federal habeas is close
to running out. Under such circumstances, a stay is appropriate. See Rhines, 544 U.S. at 278
(“it likely would be an abuse of discretion for a district court to deny a stay and to dismiss
a mixed petition if the petitioner had good cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics”).
The Supreme Court in Rhines cautioned, however, that a district court's discretion in
structuring the stay is limited by the timeliness concerns in AEDPA. The Court also says 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. Id. at 277-78.
This stay which the Court grants is conditioned on Petitioner filing a motion for
post-conviction relief with the appropriate state court within 60 days of the date of this order,
if he has not filed such a motion already. He must also return to this court within 60 days of
the date state court exhaustion is completed. See Palmer v. Carlton, 276 F.3d 777, 781 (6th
Cir. 2002) (approving similar conditions on stay). If the conditions of the stay are not met,

5

“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).
B. Motion to Appoint Counsel
Petitioner filed a motion to appoint counsel. The Court denies this motion without
prejudice; the Court sees no need to appoint counsel in a stayed case, and the Court has no
authority to appoint counsel for Petitioner to assist him in his state-court proceedings.
There is no constitutional right to the appointment of counsel in a habeas proceeding.
See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“[o]ur cases establish that the right
to appointed counsel extends to the first appeal of right, and no further”); Cobas v. Burgess,
306 F.3d 441, 444 (6th Cir. 2002) (“a petitioner does not have a right to assistance of counsel
on a habeas appeal”) (citing McCleskey v. Zant, 499 U.S. 467, 495 (1987)). Appointment
of counsel in a habeas proceeding is mandatory only if the district court determines that an
evidentiary hearing is required. Lemeshko v. Wrona, 325 F. Supp. 2d 778, 787 (E.D. Mich.
2004); see Rule 8(c), Rules Governing Section 2254 Cases in the United States District
Courts. Otherwise, the matter lies within the discretion of the court. Mira v. Marshall, 806
F.2d 636, 638 (6th Cir. 1986). An indigent habeas petitioner may obtain representation at
any stage of the case “[w]henever the United States magistrate judge or the court determines
that the interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B).
The interests of justice do not require appointment of counsel now. Accordingly, the
Court denies the motion without prejudice. Petitioner's motion will be reconsidered if, after
the Court reviews the responsive pleadings and the record in more detail, the Court

6

determines that appointment of counsel is necessary. No further motions need to be filed
with respect to this issue.
III. ORDER
IT IS ORDERED:
(1) Petitioner's Motion to Appoint Counsel [Dkt. 4] is DENIED.
(2) Petitioner's Motion to Stay Proceedings and Hold Habeas Petition in Abeyance
[Dkt. 2] is GRANTED.
(3) Petitioner may filed a post-conviction motion for relief from judgment with the
appropriate state court within sixty (60) days of the date of this order, if Petitioner has not
already filed such a motion.
(4) This case is HELD IN ABEYANCE pending Petitioner's exhaustion of his state
court remedies, provided that Petitioner files his post-conviction motion within sixty (60)
days of the date of this order, and further provided that he returns to this Court within sixty
(60) days of exhausting his state court remedies, and he files a motion to lift the stay and an
amended petition adding the exhausted claim.
(5) The Clerk of the Court must CLOSE this case, for statistical purposes only. When
the Court receives a motion to reinstate the habeas petition following exhaustion of state
remedies, it will order the Clerk to reopen this case for statistical purposes.
SO ORDERED.

s/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: August 2, 2012
7

The undersigned certifies that a copy of this
document was served on the attorneys of record
and Allen Marion by electronic means or U.S.
Mail on August 2, 2012.
s/Carol A. Pinegar
Deputy Clerk

8