Wilson v. Rapelje

Filing 6

OPINION and ORDER Holding in Abeyance the Petition for Writ of Habeas Corpus and Administratively Closing the Case. Signed by District Judge Nancy G. Edmunds. (KKra)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
HILLIARD WILSON,
Petitioner,

Civil No. 2:12-CV-14597
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE

v.
LLOYD RAPELJE,
Respondent,
____________________________________/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF
HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE.
Hilliard Wilson, (“Petitioner”), confined at the Saginaw Correctional Facility in
Freeland, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In his pro se application, petitioner challenges his convictions for assault with intent to
commit murder, M.C.L.A. 750.83; discharging a firearm in an occupied structure, M.C.L.A.
750.234b(2); carrying a concealed weapon, M.C.L.A. 750.227; felon in possession of a
firearm, M.C.L.A. 750.224f; and possession of a firearm in the commission of a felony,
M.C.L.A. 750.227b. Petitioner has now filed a motion hold the petition in abeyance to
permit him to return to the state courts to present additional claims that have not been
exhausted with the state courts and that are not included in his current habeas petition. For
the reasons stated below, the Court holds the petition in abeyance and stays the
proceedings under the terms outlined in this opinion to permit petitioner to return to the
state courts to exhaust his additional claims. The Court will also administratively close the
case.

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I. Background
Petitioner was convicted of the above offenses following a jury trial in the Wayne
County Circuit Court. Petitioner’s conviction was affirmed on appeal. People v. Wilson, No.
301899 (Mich.Ct.App. April 19, 2012); lv. den. 492 Mich. 869, 819 N.W.2d 909 (2012).
On October 11, 2012, petitioner filed this application for writ of habeas corpus.

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Petitioner seeks habeas relief on the four grounds that he raised in the state courts on his
direct appeal.
Petitioner has now filed a motion to hold the habeas petition in abeyance so that he
can return to the state courts to raise claims that have not been exhausted with the state
courts.
II. Discussion
A federal district court has authority to abate or dismiss a federal habeas action
pending resolution of state post-conviction proceedings. See Brewer v. Johnson, 139 F. 3d
491, 493 (5th Cir. 1998). However, to stay federal proceedings and hold a habeas petition
in abeyance pending resolution of state court proceedings, there must be exceptional or
unusual circumstances. Sitto v. Bock, 207 F. Supp. 2d 668, 676 (E.D. Mich. 2002)(Lawson,
J.); Hudson v. Martin, 68 F. Supp. 2d 798, 800 (E.D. Mich. 1999)(Tarnow, J.). A federal
district court is authorized to stay fully exhausted federal habeas petitions pending the
exhaustion of other claims in the state courts. See Nowaczyk v. Warden, New Hampshire
State Prison, 299 F.3d 69, 77-79 (1st Cir. 2002)(holding that district courts should “take

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Under the prison mailbox rule, this Court assumes that Petitioner filed his habeas petition on
October 11, 2012, the date that it was signed and dated. See Neal v. Bock, 137 F. Supp. 2d 879, 882, fn.
1 (E.D. Mich. 2001).

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seriously any request for a stay.”); Anthony v. Cambra, 236 F. 3d 568, 575 (9th Cir. 2000);
See also Bowling v. Haeberline, 246 Fed. Appx. 303, 306 (6th Cir. 2007)(a habeas court is
entitled to delay a decision in a habeas petition that contains only exhausted claims “when
considerations of comity and judicial economy would be served”)(quoting Nowaczyk, 299
F. 3d at 83); Moritz v. Lafler, No. 2008 WL 783751 (E.D. Mich. March 19, 2008)(Tarnow,
J.); Williams v. Trombley, No. 2006 WL 36755, * 2 (E.D. Mich. January 4, 2006)(Roberts,
J.); Tran v. Bell, 145 F. Supp. 2d 939, 941-42 (W.D. Tenn. 2001); Hill v. Mitchell, 30 F.
Supp. 2d 997, 1000 (S.D. Ohio 1998).
The Court grants petitioner’s motion to hold the petition in abeyance while he returns
to the state courts to exhaust. 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, 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 U.S. Supreme Court 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, if there is good cause for
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failure to exhaust and the unexhausted claims are not “plainly meritless.” Rhines, 544 U.S.
at 278.
Petitioner’s claims do not appear to be “plainly meritless.” Wagner v Smith, 581 F.
3d 410, 419 (6th Cir. 2009). Further, petitioner 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, nn. 4 and 5. Finally, it does not appear that petitioner has engaged in “intentionally
dilatory tactics.”
However, even where a district court determines that a stay is appropriate pending
exhaustion, 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 there are no delays by
petitioner in exhausting state court remedies, this Court imposes time limits within which
petitioner must proceed with his state court post-conviction proceedings. See Palmer v.
Carlton, 276 F. 3d 777, 781 (6th Cir. 2002).
The Court holds the petition in abeyance to allow petitioner to initiate post-conviction
proceedings in the state courts. This tolling is conditioned upon petitioner initiating his state
post-conviction remedies within ninety days of receiving this Court’s order and returning to
federal court within ninety days of completing the exhaustion of state court post-conviction
remedies. Hargrove, 300 F. 3d at 721; See also Geeter v. Bouchard, 293 F. Supp. 2d 773,
775 (E.D. Mich. 2003).
Petitioner’s method of properly exhausting these claims in the state courts would be
through filing a motion for relief from judgment with the Wayne County Circuit Court under
M.C.R. 6.502. See Wagner, 581 F. 3d at 419; See also Mikko v. Davis, 342 F. Supp. 2d
643, 646 (E.D. Mich. 2004). A trial court is authorized to appoint counsel for petitioner,
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seek a response from the prosecutor, expand the record, permit oral argument, and hold
an evidentiary hearing. M.C.R. 6.505-6.507, 6.508 (B) and (C). 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. M.C.R. 6.509; M.C.R. 7.203;
M.C.R. 7.302. Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997). Petitioner is
required to appeal the denial of his post-conviction motion to the Michigan Court of Appeals
and the Michigan Supreme Court in order to properly exhaust the claims that he would
raise in his post-conviction motion. See e.g. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D.
Mich. 2002).
III. ORDER
IT IS HEREBY ORDERED that the proceedings are STAYED and the Court will hold
the habeas petition in abeyance. Petitioner must file a motion for relief from judgment in
state court within ninety days of receipt of this order. He shall 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. After petitioner fully exhausts his
new claims, he shall file an amended petition that includes the new claims 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 petitioner’s original habeas petition.
To avoid administrative difficulties, the Court ORDERS the Clerk of Court to CLOSE

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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. See Sitto, 207 F. Supp. 2d at
677.
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/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: February 5, 2013
I hereby certify that a copy of the foregoing document was served upon counsel of record
on February 5, 2013, by electronic and/or ordinary mail.
s/Carol A. Hemeyer
Case Manager

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