Simmons v. Rapelje
Filing
10
OPINION and ORDER Holding in Abeyance Petition for Writ of Habeas Corpus and Administratively Closing Case. Signed by District Judge David M. Lawson. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PAUL SIMMONS,
Petitioner,
v.
Case Number 12-13848
Honorable David M. Lawson
LLOYD RAPELJE,
Respondent,
_________________________________/
OPINION AND ORDER HOLDING IN ABEYANCE PETITION FOR WRIT OF
HABEAS CORPUS AND ADMINISTRATIVELY CLOSING CASE
Petitioner Paul Simmons, presently confined at the Saginaw Correctional Facility in
Freeland, 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 Wayne County, Michigan circuit court on two counts of
second-degree murder, Mich. Comp. Laws § 750.317, and one count of possession of a firearm
during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. He was
sentenced on April 28, 2010 to 20 to 40 years for murder and a consecutive two-year prison term
for felony firearm. In his petition, Simmons raises three claims challenging his conviction and
sentence based on prosecutorial misconduct, improperly admitted evidence, and sufficiency of the
evidence.
On April 10, 2013, the petitioner filed a motion to hold the petition in abeyance, asking the
Court to stay his habeas proceeding while he exhausts his state court remedies for three additional
claims that he did not present in his petition or during his direct appeal. For the reasons discussed
below, the Court will grant the petitioner’s request, stay the petition, establish conditions under
which he must proceed, and administratively close the case.
I.
The petitioner was convicted of the charges listed above following a jury trial. The Michigan
Court of Appeals affirmed one of the convictions for second degree murder and the conviction for
felony firearm, but vacated the other conviction for second degree murder. People v. Simmons, No.
298360 (Mich. Ct. App. July 26, 2011). The state supreme court denied leave to appeal on
December 28, 2011. People v. Simmons, 490 Mich. 972, 806 N.W.2d 522 (2011) (Table).
On August 30, 2012, the petitioner filed an application for habeas relief in this Court, in
which he seeks relief on the three claims that he raised in his direct appeal with the Michigan courts.
On April 10, 2013, the petitioner filed a motion to hold the habeas petition in abeyance so that he
can return to state court to present his three new claims in a postconviction motion for relief from
judgment. In his motion, the petitioner asserts that on the same day he filed his motion to stay his
habeas proceeding, he also filed a motion for relief from judgment in the Wayne County circuit court
under Michigan Court Rule 6.502.
II.
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). 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. See
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
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employing constitutional analysis in similar fact patterns.” Levine v. Torvik, 986 F.2d 1506, 1516
(6th Cir. 1993), overruled in part on other grounds by Thompson v. Keohane, 516 U.S. 99 (1995)
(citing Franklin v. Rose, 811 F.2d 322, 326 (6th Cir. 1987))). A Michigan petitioner must present
each ground to both Michigan appellate courts before seeking federal habeas 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 v. Zent, 17 F.3d 155, 160 (6th Cir. 1994) (citing Darr v. Burford, 339 U.S. 200,
218-19 (1950)).
The exhaustion doctrine turns upon an inquiry as to whether there are state-court procedures
available for a habeas petitioner to exhaust his or her claims. See Adams v. Holland, 330 F.3d 398,
401 (6th Cir. 2003). In this case, the petitioner’s method of properly exhausting his claims in the
state courts is through filing a motion for relief from judgment with the Oakland County Circuit
Court under Michigan Court Rule 6.502. Denial of a motion for relief from judgment is reviewable
by the Michigan Court of Appeals and the Michigan Supreme Court upon the filing of an application
for leave to appeal. Mich. Ct. R. 6.509; Mich. Ct. R. 7.203; Mich. Ct. R. 7.302. Nasr v. Stegall, 978
F. Supp. 714, 717 (E.D. Mich. 1997).
The Supreme Court has held that the filing of a federal habeas petition does not suspend the
running of the one-year limitations period under 28 U.S.C. § 2244(d)(2). Duncan v. Walker, 533
U.S. 167, 181-82 (2001). However, the Supreme Court’s decision in Duncan did not prevent district
courts from “retain[ing] jurisdiction over a meritorious claim and stay[ing] proceedings pending the
complete exhaustion of state remedies,” or from “deeming the limitations period tolled for [a habeas]
petition as a matter of equity.” Id. at 182-83 (Stevens, J., concurring). The Supreme Court
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nonetheless has cautioned that a stay is “available only in limited circumstances,” such as “when the
district court determines there was good cause for the petitioner’s failure to exhaust his claims first
in state court,” the unexhausted claims are not “plainly meritless,” and the petitioner has not
“engage[d] in abusive litigation tactics or intentional delay.” Rhines v. Weber, 544 U.S. 269, 277-78
(2005).
In this case, the outright dismissal of the petition, albeit without prejudice, might result in
preclusion of consideration of the petitioner’s claims in this 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 calling for abating a habeas petition arises
when the original petition was timely filed, as was the case here, but a second, exhausted habeas
petition would 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, in fact, has suggested that a habeas
petitioner who is concerned about the possible effects of his state post-conviction filings on the
AEDPA’s statute of limitations could 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 further proceedings in abeyance pending
resolution of state court post-conviction proceedings, provided there is good cause for failure to
exhaust claims and that the unexhausted claims are not “plainly meritless.” Rhines, 544 U.S. at 278.
The statute of limitations in 28 U.S.C. § 2244(d) should cause the petitioner some concern.
The Michigan Supreme Court denied the petitioner’s application for leave to appeal on December
28, 2011. The petitioner’s convictions then became final ninety days later, on March 27, 2012, when
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the time during which he could have filed a petition for a writ of certiorari in the United States
Supreme Court expired. The one-year limitations period commenced the following day, March 28,
2012. See Bronaugh v. Ohio, 235 F.3d 280, 284–85 (6th Cir.2000) (holding that the last day on
which a petitioner can file a petition for a writ of certiorari in the United States Supreme Court is
not counted toward the one-year limitations period applicable to habeas corpus petitions). The
petitioner filed the pending petition on August 30, 2012. If the Court does not toll the limitations
period during the pendency of his state-court action, the limitations period likely will have expired
and any subsequent habeas petition filed by him would be untimely, by the time that the state trial
court decides his pending motion for relief from judgment.
The Court, therefore, will grant the petitioner’s motion to hold the petition in abeyance while
he returns to the state courts to exhaust additional claims. The three claims that the petitioner raises
in his petition have been exhausted, but the three that he raises in his motion for abeyance have not.
The petitioner’s claims do not appear to be “plainly meritless,” Wagner v. Smith, 581 F. 3d 410, 419
(6th Cir. 2009), and he may assert that he did not previously raise these claims in the state courts due
to the ineffective assistance of appellate counsel. Id., at 419, n.4 & 5. It does not appear that the
petitioner has engaged in “intentionally dilatory tactics.”
However, even where 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. Therefore, to ensure that there are
no delays by the petitioner in exhausting his state court remedies, this Court will impose upon the
petitioner time limits within which he must proceed with his state court post-conviction proceedings.
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See Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002). The petitioner must ask this Court to lift
the stay within twenty-eight days of exhausting his state court remedies.
III.
Accordingly, it is ORDERED that the petitioner’s motion to hold petition in abeyance [dkt.
#8] is GRANTED.
It is further ORDERED that the petitioner must file an amended petition in this Court within
twenty-eight days after the conclusion of the state court proceedings. If the petitioner files an
amended petition, the respondent shall file an answer addressing the allegations in the petition in
accordance with Rule 5 of the Rules Governing Section 2254 Cases in the United States District
Courts within sixty days thereafter. If the petitioner returns to federal court with an amended
petition, following exhaustion of his state court remedies, he must use the same caption and case
number as appears on this order.
It is further ORDERED that to avoid administrative difficulties the Clerk of Court CLOSE
this case for statistical purposes only. Nothing in this order or in the related docket entry shall be
considered a dismissal or adjudication of this matter.
It is further ORDERED that upon receipt of a motion to reinstate the habeas petition
following exhaustion of state remedies, the Court may order the Clerk to reopen this case for
statistical purposes.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: April 22, 2013
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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 April 22, 2013.
s/Deborah R. Tofil
DEBORAH R. TOFIL
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