Carter v. Curley

Filing 11

OPINION and ORDER GRANTING Petitioner's 10 MOTION to Hold 1 Habeas Petition in Abeyance and Administratively Closing Case Signed by District Judge Gerald E. Rosen. (Loury, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PERRY CARTER,
Case Number: 2:12-CV-13785

Petitioner,

HONORABLE GERALD E. ROSEN

v.
MICHAEL CURLEY,
Respondent.
/

OPINION AND ORDER GRANTING PETITIONER’S
MOTION TO HOLD HABEAS PETITION IN ABEYANCE
AND ADMINISTRATIVELY CLOSING CASE
Michigan state prisoner Perry Carter filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his convictions for first-degree murder,
carjacking, assault with intent to rob while armed, and possession of a firearm during the
commission of a felony. Now before the Court is Petitioner’s motion to hold these
proceedings in abeyance. Petitioner asks the Court to stay further proceedings so that he
may return to state court to raise unexhausted claims of ineffective assistance of trial and
appellate counsel.
State prisoners must exhaust available state remedies for each of the claims
presented in a habeas petition before seeking a federal writ of habeas corpus. 28 U.S.C. §
2254(b)(1). A federal court may stay a federal habeas petition and hold further
proceedings in abeyance pending resolution of state court post-conviction proceedings if
outright dismissal of a habeas petition would jeopardize the timeliness of a future petition,

there is good cause for the petitioner’s failure to exhaust those claims, the unexhausted
claims are not “plainly meritless,” and “there is no indication that the petitioner engaged
in intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S. 269, 278 (2005).
In this case, the outright dismissal of the petition, even without prejudice, may
preclude future consideration of Petitioner’s claims in this Court due to the expiration of
the statute of limitations. See 28 U.S.C. § 2241(d)(1). Staying a habeas corpus
proceeding is appropriate where, as here, the original petition was timely filed, but a
second, exhausted habeas petition may be time barred by the AEDPA’s statute of
limitations. See Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002).
The Supreme Court did not define “good cause” in Rhines, nor has the Sixth
Circuit Court of Appeals done so. See Bates v. Knab, 2011 WL 2785244, *5 (S.D. Ohio
July 15, 2011), citing Hnatiuk v. Trombley, 2008 WL 3305157 (E.D. Mich. Aug. 11,
2008). A number of federal courts have concluded that the Rhines good cause
requirement is less stringent than the good cause showing required in the context of
procedural default. See Lockridge v. Ludwick, 2009 WL 5217592, *3 (E.D. Mich. Dec.
28, 2009) (holding that “good cause under Rhines is something less than the cause needed
to excuse a procedural default”); Bryant v. Greiner, 2006 WL 1675938, *5 (S.D. N.Y.
June 15, 2006) (same); Rhines v. Weber, 408 F. Supp. 2d 844, 849 (D.S.D. 2005) (on
remand, applying a more expansive definition of “good cause” than the showing needed
for cause to excuse a procedural default); Jackson v. Roe, 425 F.3d 654, 662 (9th Cir.
2005) (holding that “good cause” standard prescribed in Rhines does not require a
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showing of “extraordinary circumstances”).
Petitioner raises ineffective assistance of appellate counsel as cause for his failure
to exhaust the unexhausted claims. 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).
Therefore, the Court finds Petitioner has satisfied the good cause standard.
The Court also must determine whether Petitioner’s unexhausted claims are
“plainly meritless.” In Rhines, the Supreme Court did not establish a standard for
determining whether a petitioner’s claims are “plainly meritless.” Most courts applying
the standard do so in conclusory fashion without weighing or even considering the
evidence. See e.g., Anthony v. Palmer, 2011 WL 1532162, *2 (E.D. Mich. Apr. 22, 2011)
(granting stay under Rhines and holding that unexhausted claims are potentially
meritorious with no analysis of merits of the claims); Wengorovius v. Scutt, 2009 WL
2849577, *3 (E.D. Mich. Sept. 1, 2009) (granting stay and determining that unexhausted
claims are not “plainly meritless” based upon an “initial review of the substance of the
unexhausted issues” with no further discussion or analysis); Wright v. Trombley, 2007
WL 4181316, *3 (E.D. Mich. Nov. 27, 2007) (same). See also Woodson v. Smith, 2010
WL 3781579, *4 (N.D. Ohio Sept. 23, 2010) (holding, without further discussion, that
petitioner’s “claims are potentially meritorious in that none of his claims are plainly
without merit”); Cueto v. McNeil, 2010 WL 1258065, *16 (S.D. Fla. March 12, 2010)
(collecting cases). In Bartelli v. Wynder, 2005 WL 1155750, *2 (E.D. Pa. May 12, 2005),
the District Court for the Eastern District of Pennsylvania held that a petitioner’s
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unexhausted claims were not plainly meritless because they alleged a violation of
petitioner’s constitutional rights that could serve as grounds for granting a writ of habeas
corpus if supported by sufficient facts.
Here, Petitioner seeks to raise new claims regarding ineffective assistance of trial
and appellate counsel. All of these claims raise constitutional issues which may form the
basis for habeas corpus relief. Thus, Petitioner’s claims, if supported by sufficient
evidence, are not plainly meritless.
Finally, Petitioner does not appear to be engaging in intentionally dilatory
litigation tactics. Therefore, the Court stays further proceedings in this matter pending
exhaustion of the additional 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 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. He 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.” Id. (internal quotation omitted).
Accordingly, the Court GRANTS Petitioner’s “Motion to Hold Habeas
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Proceedings in Abeyance” [dkt. #10]. 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.
The Court ORDERS that the Clerk of Court shall close this case for statistical
purposes only.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: June 24, 2013
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on June 24, 2013, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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