Marion v. Berghuis

Filing 92

OPINION AND ORDER Denying the Emergency Motion for Bond Pending Appeal 88 , Granting Emergency Motions to Amend the Petition 91 90 , Holding In Abeyance the Petition for Writ of Habeas Corpus and Administratively Closing the Case. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALLEN MARION,
Petitioner,
v.

Civil No. 2:12-CV-13127
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

JEFFREY WOODS,
Respondent,
____________________________________/
OPINION AND ORDER DENYING THE EMERGENCY MOTION FOR
BOND PENDING APPEAL (ECF No. 88), GRANTING THE EMERGENCY
MOTIONS TO AMEND THE PETITION (ECF No. 90, 91), HOLDING IN
ABEYANCE THE PETITION FOR WRIT OF HABEAS CORPUS AND
ADMINISTRATIVELY CLOSING THE CASE
Petitioner, Allen Marion, filed an emergency motion for bond pending appeal
and two emergency motions to amend the petition.
For the reasons that follow, the motion for bond is DENIED. The Court
GRANTS the motions to amend the petition. The second amended petition contains
a claim that is unexhausted. In lieu of dismissing the case, the Court holds the
petition in abeyance and stays the proceedings to permit Petitioner to return to the
state courts to exhaust his claim. The Court administratively closes the case.
I. Background
This Court granted Petitioner a conditional writ of habeas corpus, finding that
he was denied the effective assistance of trial counsel because his attorney failed to
1

investigate and present an alibi defense. Marion v. Woods, 128 F Supp. 3d 987 (E.D.
Mich. 2015). This Court declined to address Petitioner’s remaining claims.
The Sixth Circuit reversed the decision and remanded the case “for dismissal
of the § 2254 petition.” Marion v. Woods, 663 F. App’x. 378 (6th Cir. 2016); cert.
den. 137 S. Ct. 2291 (2017).
The case was reopened to the Court’s docket. (ECF No. 81). Petitioner filed
a supplemental brief. (ECF No. 84). Respondent filed a supplemental answer. (ECF
No. 89).
A. The emergency motion for bond pending appeal (ECF No. 88).
Petitioner filed a motion for bond pending appeal.
In order to receive bond pending a decision on the merits of a habeas corpus
petition, a petitioner must show a substantial claim of law based on the facts and
exceptional circumstances justifying special treatment in the interest of justice. Lee
v. Jabe, 989 F.2d 869, 871 (6th Cir. 1993)(quoting Dotson v. Clark, 900 F.2d 77, 79
(6th Cir. 1990)); See also Nash v. Eberlin, 437 F. 3d 519, 526, n. 10 (6th Cir. 2006).
There will be few occasions where a habeas petitioner meets this standard. Dotson,
900 F. 2d at 79. Federal courts may grant bail when granting the writ. See Sizemore
v. District Court, 735 F. 2d 204, 208 (6th Cir. 1984). By implication, a federal court
should not grant bail under other circumstances. Petitioner failed to establish at this
time that he would prevail on the merits of his remaining claims; he is not entitled
2

to release on bail. See e.g. Greenup v. Snyder, 57 F. App’x. 620, 621-22 (6th Cir.
2003).
Petitioner argues that his case is meritorious because he was previously
granted habeas relief on his claim that counsel was ineffective for failing to present
an alibi defense. Although this Court believes its decision to grant relief was correct,
the Sixth Circuit reversed the grant and reinstated the conviction. Under the law of
the case doctrine, a court is ordinarily precluded from re-examining an issue
previously decided by the same court, or by a higher court in the same case.
Consolidation Coal Co. v. McMahon, 77 F. 3d 898, 905 (6th Cir. 1996). The law of
the case doctrine applies to habeas cases in various contexts. See Crick v. Smith, 729
F. 2d 1038, 1039 (6th Cir. 1984). “Under the doctrine of law of the case, findings
made at one point of the litigation become the law of the case for subsequent stages
of that same litigation.” United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994).
The law of the case doctrine “generally bars the district court from reconsidering
those issues that the court of appeals has already explicitly or impliedly resolved.”
Keith v. Bobby, 618 F.3d 594, 599 (6th Cir. 2010); See also In re Kenneth Allen
Knight Trust, 303 F.3d 671, 676 (6th Cir. 2002)(“Issues decided at an early stage of
the litigation, either explicitly or by necessary inference from the disposition,
constitute the law of the case.”)(internal quotation marks and citations omitted). The

3

Sixth Circuit ruled that Petitioner’s claim did not entitle him to relief; Petitioner is
not entitled to release on bond on this claim.
Petitioner also seeks release on bond, claiming that his health is in danger
because of the current historic Coronavirus pandemic and the risks that the virus
poses to inmates.
The Court is sympathetic to Petitioner’s concerns. Nonetheless, Petitioner is
not entitled to emergency release on bond.
Petitioner’s request to be released due to COVID-19 is completely unrelated
to the claims that he raises in his original and amended petitions. As such, the claims
and relief requested in Petitioner’s motion for release are “outside the scope of this
lawsuit.” Ross v. Chapman, No. 2:19-CV-13729, 2021 WL 148020, at * 4 (E.D.
Mich. Jan. 15, 2021). “Petitioner may not “piggy-back” a separate, unrelated claim
to his habeas petition.” Id.
Petitioner failed to show that the State of Michigan is unable or unwilling of
protecting him and other inmates through precautionary measures. Titus v. Nagy,
No. 2:18-CV-11315, 2020 WL 1930059, at * 3 (E.D. Mich. Apr. 21, 2020),
reconsideration denied, No. 2:18-CV-11315, 2020 WL 2733882 (E.D. Mich. May
26, 2020). The Director of the Michigan Department of Corrections (MDOC) issued
a memorandum, listing in detail the numerous steps undertaken by the MDOC to
protect staff and prisoners from the spread of COVID-19. The Director’s
4

memorandum outlines various precautionary measures that staff should take to
prevent the spread of COVID-19. These precautionary measures include: developing
isolation areas for the placement and treatment of prisoners who (i) have tested
positive for COVID-19, (ii) are under investigation for having COVID-19, or (iii)
have had close contact with known-positive COVID-19 individuals; the wearing of
protective gear; the screening of individuals entering correctional facilities; and
social distancing. Id.
Governor Gretchen Whitmer also promulgated certain protocols to mitigate
the spread of COVID-19 among state prisoners and employees who work in state
prisons. Executive Order 2020-119 requires MDOC to continue the risk-reduction
protocols already in place and implemented in its facilities. These protocols include:
screening persons entering and departing facilities; restricting visitors; limiting offsite appointments; developing and implement protocols for inmates with COVID-19
symptoms; providing personal protective equipment for staff; stringently cleaning
areas and surfaces; ensuring access to personal hygiene products; practicing social
distancing; and minimizing crowding. Id.
The extensive precautionary measures undertaken by the MDOC to limit
inmates’ exposure to Covid-19 at the direction of the Governor and the Director of
the MDOC rebut Petitioner’s argument that exceptional circumstances exist to
justify his release on bond.
5

Petitioner’s case is distinguishable from cases in which habeas petitioners
were released on bond. Unlike the petitioner who was released on bond in Puertas
v. Overton, 272 F. Supp.2d 621 (E.D. Mich. 2003), Petitioner failed to show that he
is in dire health, suffers from severe coronary disease, or required to follow a lifepreserving regimen for an aggressive form of cancer.
Petitioner’s case also is distinguishable from Clark v. Hoffner, No. 2:16-cv11959, 2020 WL 1703870 (E.D. Mich. Apr. 8, 2020), a case in which this Court
released a habeas petitioner on bond due to the threat of COVID-19 at the Lakeland
Correctional Facility. This Court already granted habeas relief on Petitioner’s claim
and concluded that there was evidence of actual innocence. Additionally, that
Petitioner had followed all conditions of bond when he was previously released, and
after the Sixth Circuit ordered the District Court to reverse its order granting release
on bond, the Wayne County’s Conviction Integrity Unit investigated the case and
was prepared to recommend that the Petitioner be completely exonerated or given a
new trial.
Unlike the Clark case, Petitioner has not been granted relief on any of his
remaining claims. Petitioner claims that the Wayne County Prosecutor’s Office
Conviction Integrity Unit is investigating his claim of actual innocence but presented
no evidence to this Court to substantiate that claim. The Court will reconsider
Petitioner’s request if he presents evidence that the Conviction Integrity Unit is
6

investigating his actual innocence claim and considering recommending his release.
At this point, the motion for bond is denied.
B. The emergency motions to amend the petition. (ECF No. 90, 91).
Petitioner filed two motions to amend the petition.
The decision to grant or deny a motion to amend a habeas petition is within
the discretion of the district court. Clemmons v. Delo, 177 F. 3d 680, 686 (8th Cir.
1999)(citing to Fed.R.Civ.P. Rule 15. Notice and substantial prejudice to the
opposing party are the critical factors in determining whether an amendment to a
habeas petition should be granted. Coe v. Bell, 161 F. 3d 320, 341-342 (6th Cir.
1998). A motion to amend a habeas petition may be denied when it has been unduly
delayed and when allowing the motion would prejudice the nonmovant. Smith v.
Angelone, 111 F. 3d 1126, 1134 (4th Cir. 1997). However, delay by itself is not
sufficient to deny a motion to amend. Coe, 161 F. 3d at 342.
Petitioner’s proposed amended habeas petitions should be granted; they
advance new claims that may have arguable merit. See e.g. Braden v. United States,
817 F.3d 926, 930 (6th Cir. 2016).
C. Petitioner’s new Brady claim is unexhausted.
Petitioner in his second emergency motion to amend alleges that he has newly
discovered evidence that the Wayne County Prosecutor committed a fraud upon the
court by withholding from the state trial court and Petitioner’s defense counsel,
7

evidence that another person, namely the sister of the sole eyewitness, was
considered a suspect in the murder for which Petitioner was convicted. Petitioner
alleged the prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to
disclose to the Wayne County Circuit Court or defense counsel that the police had
investigated the sister of Ricardo Sims as a possible murder suspect; she was a
beneficiary on the murder victim’s life insurance policy. Petitioner also alleged that
trial counsel was ineffective for failing to object to the non-disclosure, and that
appellate counsel was ineffective for failing to raise this claim on direct appeal.
Petitioner brought this claim in a Rule 60(b) motion, which was construed as
a second or successive habeas petition and transferred pursuant to 28 U.S.C. §
2244(b)(3)(A) for the Sixth Circuit to determine whether or not to grant Petitioner
permission to file a second habeas petition. (ECF No. 74). The United States Court
of Appeals for the Sixth Circuit denied Petitioner permission to file a second habeas
petition. In Re Marion, No. 20-1497 (6th Cir. Sep. 29, 2020)(ECF No. 76).
This Court now believes that it erred in treating Petitioner’s Rule 60(b) motion
as a successive habeas petition.

A district court has jurisdiction to entertain

“numerically second petitions that are not ‘second or successive’ petitions within the
meaning of 28 U.S.C. § 2244(b)” and thus needs no authorization from the Sixth
Circuit to consider such a petition when it is filed in the district court. In Re Smith,
690 F. 3d 809, 809 (6th Cir. 2012)(collecting cases). Indeed, “a district court may
8

(and should) rule on newly ripe claims and is ‘not required to get authorization’ from
the court of appeals before doing so.” Id., at 810. Petitioner’s Brady claim was not
ripe at the time that the original petition was adjudicated; this claim is not a second
or successive claim for purposes of § 2244(b). See In re Salem, 631 F.3d 809, 813
(6th Cir. 2011); See also McGowan v. Christiansen, 353 F. Supp. 3d 662, 669–70
(E.D. Mich. 2018)(Petitioner’s Brady claim did not amount to second or successive
habeas petition for which he was required to obtain permission from the Court of
Appeals before he could raise the claim on remand in the District Court, where
petitioner had never received an adjudication of the claim; District Court
conditionally granted petitioner habeas relief on another claim, and essentially
dismissed his Brady claim without prejudice because it was not ripe and
unexhausted).
Petitioner admits that he did not exhaust this claim with the state courts.
Petitioner argues that he has no remedy to exhaust this claim because the one year
statute of limitations for him to file a successive post-conviction motion for relief
from judgment under M.C.R. 6.502(G) expired. (ECF No. 91, PageID. 2419).
A state prisoner who seeks federal habeas relief must first exhaust his or her
available state court remedies before raising a claim in federal court. 28 U.S.C. §
2254(b) and (c). See Picard v. Connor, 404 U. S. 270, 275-78 (1971). Federal
district courts must dismiss habeas petitions which contain unexhausted claims. See
9

Pliler v. Ford, 542 U.S. 225, 230 (2004)(citing Rose v. Lundy, 455 U.S. 509, 510,
522 (1982)). A federal court cannot consider granting habeas relief “if there still is
a potential state remedy for the state courts to consider.” See Wagner v. Smith, 581
F. 3d 410, 415 (6th Cir. 2009).
Contrary to Petitioner’s assertions, M.C.R. 6.502(G) does not contain a one
year statute of limitations for bringing a post-conviction motion for relief from
judgment based on newly discovered evidence. See Wilkins v. Kawalski, No. 1:20CV-1057, 2021 WL 1015914, at * 5 (W.D. Mich. Mar. 17, 2021).
Exhausting state court remedies in this case requires the filing of a postconviction motion for relief from judgment under M.C.R. 6.500. See Wagner v.
Smith, 581 F. 3d at 419. Petitioner could exhaust his claim by filing a motion for
relief from judgment with the Wayne County Circuit Court under M.C.R. 6.502.
The denial of a motion for relief from judgment can be appealed to the Michigan
Court of Appeals and the Michigan Supreme Court. M.C.R. 6.509; M.C.R. 7.203;
M.C.R. 7.302. See Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997).
The outright dismissal of the petition, even without prejudice, might result in
petitioner being foreclosed from presenting his claims in federal court due to the
expiration of the one year statute of limitations contained in the Antiterrorism and
Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d)(1). A common
circumstance that calls for the abatement of a habeas petition arises when an original
10

petition was timely filed, but a second, exhausted habeas petition would be time
barred by the statute of limitations for filing habeas petitions contained in 28 U.S.C.
§ 2244(d)(1). See Hargrove v. Brigano, 300 F. 3d 717, 720-21 (6th Cir. 2002).
A habeas petitioner who is concerned about the possible effects of his or her
state post-conviction filings on the AEDPA’s statute of limitations can file a
“protective” petition in federal court and then ask for the petition to be held in
abeyance pending the exhaustion of state post-conviction remedies. See Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005)(citing Rhines v. Weber, 544 U.S. 269
(2005)). A federal court may stay a federal habeas petition and hold the petition in
abeyance pending resolution of state court post-conviction proceedings, if there is
good cause for failure to exhaust and the unexhausted claims are not “plainly
meritless.” Rhines, 544 U.S. at 278.
Petitioner’s claim does not appear to be “plainly meritless.” See Wagner v.
Smith, 581 F. 3d at 419. Petitioner’s Brady claim is based on newly discovered
evidence; Petitioner shows good cause for failing to raise this claim sooner. See e.g.
Cunningham v. Hudson, 756 F.3d 477, 486 (6th Cir. 2014).
A criminal defendant in Michigan can typically file only one motion for relief
from judgment with regard to a criminal conviction. See Banks v. Jackson, 149 F.
App’x. 414, 418 (6th Cir. 2005); Hudson v. Martin, 68 F. Supp. 2d 798, 800 (E.D.
Mich. 1999)(citing to People v. Ambrose, 459 Mich. 884; 587 N. W. 2d 282 (1998)).
11

However, M.C.R. 6.502(G)(2) states that a defendant may file a second or
subsequent motion based on a retroactive change in law that occurred after the first
motion for relief from judgment or a claim of new evidence that was not discovered
before the first such motion. Banks, 149 F. App’x. at 418; Hudson, 68 F. Supp. 2d
at 800-01. Petitioner alleges that his claim is based on newly discovered evidence.
This Court “should exercise caution in finding that” 6.502(G) would bar
Petitioner from presenting his Brady claim to the Michigan courts. Banks, 419 F.
App’x. at 418. “Because it is at least debatable whether the Michigan courts would
entertain this claim on a second or successive motion for state postconviction
relief,”Id., based on one of the exceptions contained in M.C.R. 6.502(G)(2),
particularly the newly discovered evidence exception, a procedural bar to such a
second motion is not clearly applicable; Petitioner is granted a stay of proceedings
to permit him to attempt to exhaust his claim in a second motion for relief from
judgment with the state courts. Id. at 419-20; See also Cunningham, 756 F. 3d at
485-87.
When a district court determines that a stay is appropriate pending exhaustion
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,
12

276 F.3d 777, 781 (6th Cir. 2002). Petitioner must present his claim in state court
by filing a post-conviction motion for relief from judgment with the state trial court
within ninety days from the date of this Order. See id. Further, he must ask this
Court to lift the stay within ninety days of exhausting his state court remedies. 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).
ORDER
The Court ORDERS:
(1) The emergency motion for bond pending appeal (ECF No. 88) is
DENIED.
(2) The emergency motions to amend the petition (ECF No. 90, 91) are
GRANTED.
(3) The petition is held in abeyance. Petitioner must file a motion for
relief from judgment in state court within ninety days of receipt of this
order. He must notify this Court in writing that such motion papers
have been filed in state court. If he fails to file a motion or notify the
Court that he has done so, the Court will lift the stay and will reinstate
the original petition for writ of habeas corpus to the Court’s active
docket and will proceed to adjudicate only those claims that were raised
in the original petition and the first amended petition (ECF No. 90).
After Petitioner fully exhausts his Brady claim, he must file an amended
petition that includes the new claim within ninety days after the
conclusion of his state court post-conviction proceedings, along with a
motion to lift the stay. Failure to do so will result in the Court lifting
the stay and adjudicating the merits of the claims raised in the original
habeas petition and the first amended petition.
13

(4) The Clerk of Court must 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. Upon receipt of a
motion to reinstate the habeas petition following exhaustion of state
remedies, the Court will order the Clerk to reopen this case for
statistical purposes.

Dated: 11/19/2021

s/ Victoria A. Roberts
HON. VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

14