Cooper v. Romanowski

Filing 5

MEMORANDUM and ORDER granting 2 Petitioner's Motion for a Stay and Closing Case for Administrative Purposes. Signed by District Judge Avern Cohn. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JERMAINE ARNAEZ COOPER,
Petitioner,
Case No. 12-cv-14318
HONORABLE AVERN COHN

v.
KEN ROMANOWSKI,
Respondent.
_________________________________/

MEMORANDUM AND ORDER
GRANTING PETITIONER’S MOTION FOR A STAY (Doc. 2)
AND
CLOSING CASE FOR ADMINISTRATIVE PURPOSES
I. Introduction
This is a habeas case under 28 U.S.C. § 2254. Before the Court are a pro se
habeas corpus petition and motion for a stay of these proceedings. For the reasons
stated below, the motion for a stay is granted, and the habeas petition will be held in
abeyance. The Court will also impose time limits upon Petitioner for returning to this
Court following pursuit of his state court remedies. Finally, the Court will close the case
for statistical purposes.
II. Background
Petitioner Jermaine Arnaez Cooper is challenging his Wayne County conviction
for assault with intent to do great bodily harm less than murder, Mich. Comp. Laws §
750.82. On May 25, 2010, Petitioner was sentenced as a habitual offender to
imprisonment for eleven and a quarter to twenty-two years. The Michigan Court of
Appeals affirmed his conviction, see People v. Cooper, No. 298790 (Mich. Ct. App. Mar.

8, 2012), and on July 24, 2012, the Michigan Supreme Court denied leave to appeal
because it was not persuaded to review the issues. See People v. Cooper, 817 N.W.2d
106 (Mich. 2012) (table).
On September 28, 2012, Petitioner filed a habeas corpus along with a motion to
stay resolution of the petition. In the petition, Petitioner claims that: (1) the verdict was
based on insufficient evidence of his intent; (2) his right to testify in his own behalf was
violated when the trial court ordered the parties to make their closing arguments before
he could be located and testify; (3) he was denied effective assistance of appellate
counsel; (4) he was denied his right to confront his accuser and to cross-examine
medical personnel; (5) he was denied his right to present a defense; (6) he did not
waive or forfeit his rights to confront his accusers or to testify in his own behalf by
violating the terms of his bond and failing to appeal; and (7) he was denied his right to
effective assistance of trial counsel.
In his motion for a stay, Petitioner claims to have newly discovered evidence,
which his former attorneys failed to discover. He wishes to pursue additional state
remedies before seeking review of his conviction in this Court. Petitioner states that he
filed his habeas petition before exhausting all his state court remedies to avoid having
his federal claims barred by the statute of limitations.
III. Discussion
The doctrine of exhaustion of state remedies requires state prisoners to fairly
present all their claims to the state court before raising their claims in a federal habeas
corpus petition. See 28 U.S.C. § 2254(b)(1)(A) and § 2254(c); O’Sullivan v. Boerckel,
526 U.S. 838, 842, 845 (1999). This means that state prisoners must present each
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habeas claim to the state court of appeals and to the state supreme court before filing a
federal habeas corpus petition. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009).

Petitioner says he has one or more new claims that have not been raised in state
court. “In Rose v. Lundy, 455 U.S. 509, 522, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982),
[the Supreme Court] held that ‘mixed’ habeas petitions – containing both exhausted and
unexhausted claims – cannot be adjudicated.” Jones v. Bock, 549 U.S. 199, 221
(2007). A district court ordinarily must dismiss a habeas petition containing both
unexhausted and exhausted claims. Rose v. Lundy, 455 U.S. at 522.
“This total exhaustion rule . . . was initially derived from considerations of
‘comity and federalism,’ not any statutory command. Separate claims in a
single habeas petition generally seek the same relief from custody, and
success on one is often as good as success on another.
Jones v. Bock, 549 U.S. at 221 (internal citation omitted). Thus, “it makes sense to
require exhaustion of all claims in state court before allowing the federal action to
proceed.” Id. at 221-22.
A dismissal of this case pending exhaustion of state remedies could preclude
future consideration of Petitioner’s claims due to the expiration of the one-year statute of
limitations. See 28 U.S.C. § 2244(d). Faced with a similar dilemma, some courts have
adopted a “stay-and-abeyance” approach. Rhines v. Weber, 544 U.S. 269, 275 (2005).
Under this approach, district courts stay the federal proceedings and hold the habeas
petition in abeyance while the inmate returns to state court to pursue remedies for the
unexhausted claims. Id. at 275. After the state court completes its review of the
inmate’s unexhausted claims, the federal court can lift its stay and allow the inmate to
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proceed in federal court. Id. at 275-76. The “stay-and-abeyance” procedure is available
in limited circumstances where (1) there was good cause for the petitioner’s failure to
exhaust his claims first in state court, (2) the unexhausted claims are not plainly
meritless, and (3) the petitioner is not engaged in abusive litigation tactics. Id. at 27778.
Although Petitioner has not alleged the nature of his new and unexhausted
claims, he is not engaged in abusive litigation tactics, and he suggests that his former
attorneys were ineffective for failing to discover certain issues that could have been
raised on appeal. Under the circumstances, it is not an abuse of discretion to stay this
case rather than to dismiss the petition while Petitioner pursues additional postconviction remedies in state court.
Where, as here, 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 will
impose time limits upon Petitioner within which he must proceed. See Palmer v.
Carlton, 276 F.3d 777, 781 (6th Cir. 2002). “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).
IV. Conclusion
Accordingly, Petitioner’s motion to stay is GRANTED. This case will be held in
abeyance while Petitioner pursues state remedies. The Court’s stay is conditioned on
Petitioner filing a motion for relief from judgment in the state trial court, if he has not

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already done so, within sixty (60) days of the date of this order.
If Petitioner is unsuccessful in state court and wishes to pursue federal habeas
remedies once again, he shall file an amended habeas corpus petition and a motion to
re-open this case, using the same case name and number that appear in the caption of
this order. The amended petition and motion to re-open the case shall be filed within
sixty (60) days of exhausting state remedies.
The Clerk of the Court shall CLOSE this case for administrative purposes. This
administrative closing shall not be construed as a dismissal or adjudication of
Petitioner’s claims.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: November 8, 2012

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, November 8, 2012, by electronic and/or ordinary mail.

S/Julie Owens
Case Manager, [phone]