Roberts v. Klee

Filing 7

ORDER HOLDING THE PETITION IN ABEYANCE, CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES, DENYING AS MOOT APPLICATION FOR APPOINTMENT OF COUNSEL AND DENYING AS MOOT THE MOTION FOR BOND 3 Application for Appointment of Counsel filed by Roger Roberts Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROGER DALE ROBERTS,
Petitioner,
v.

CASE NO. 2:12-cv-14673
HONORABLE LAWRENCE P. ZATKOFF

PAUL KLEE,
Respondent.
_____________________________/
ORDER HOLDING THE PETITION IN ABEYANCE,
CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES,
AND DENYING AS MOOT PETITIONER’S APPLICATION
FOR APPOINTMENT OF COUNSEL AND MOTION FOR BOND
This matter is before the Court on petitioner Roger Dale Roberts’ pro se habeas
corpus petition, application for appointment of counsel, and motion for bond. The habeas
petition challenges Petitioner’s convictions for child sexually abusive activity on three
grounds. Because Petitioner has failed to exhaust state remedies for his three habeas
claims, the Court will hold his petition in abeyance so that he can first present his claims
to the state court.
I. Background
In 2009, a state circuit court jury in Muskegon County, Michigan found Petitioner
guilty of three counts of child sexually abusive activity.

See Mich. Comp. Laws §

750.145c(2). On or about August 13, 2009, the trial court sentenced Petitioner as a
habitual offender to imprisonment for seven to twenty-two years. On appeal from his
convictions, Petitioner alleged that (1) the statute under which he was convicted was
overbroad and void for vagueness, (2) the trial court erred when it denied his motion to

suppress evidence, and (3) the trial court abused its discretion when it declined to depart
downward from the sentencing guidelines range. The Michigan Court of Appeals found no
merit in these claims and affirmed Petitioner’s convictions in a published decision. See
People v. Roberts, 808 N.W.2d 290 (Mich. Ct. App. 2011). On October 24, 2011, the
Michigan Supreme Court denied leave to appeal because it was not persuaded to review
the issues. See People v. Roberts, 804 N.W.2d 325 (Mich. 2011).
Petitioner filed his habeas corpus petition on October 19, 2012. He claims that (1)
his trial attorney was ineffective, (2) the prosecutor used perjured testimony to convict him,
and (3) there was insufficient evidence to support the charges against him.
II. 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 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 admits that he did not raise his pending claims on direct appeal to the
Michigan Court of Appeals and to the Michigan Supreme Court. See Pet. for Writ of
Habeas Corpus, at 5-6, 8, 10. District courts ordinarily must dismiss a habeas petition
containing any unexhausted claims, see Rose v. Lundy, 455 U.S. 509, 522 (1982), but 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).
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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. After the state
court completes its review of the inmate’s claims, the federal court can lift its stay and allow
the inmate to proceed in federal court. Id. at 275-76. The stay-and-abeyance procedure
is permissible when (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 or intentional delay. Id. at 277-78.
Petitioner is not engaged in abusive litigation tactics, and his unexhausted claims
are not plainly meritless. Further, he alleges that he did not raise his claims on appeal from
his convictions because he is not experienced in matters of law and he relied on his
attorney. Under the circumstances, it is not an abuse of discretion to stay this case rather
than to dismiss it for failure to exhaust state remedies.
Accordingly, it is hereby ORDERED that this case will be held in abeyance pending
exhaustion of state remedies. The Court’s stay is conditioned on Petitioner filing a motion
for relief from judgment in the state trial court within ninety (90) days of the date of this
order.
It is further ORDERED that, if Petitioner is unsuccessful in state court and wishes
to pursue federal habeas corpus 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

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case shall be filed within ninety (90) days of exhausting state remedies.
It is further ORDERED that Petitioner’s application for appointment of counsel [dkt.
#3] and motion for bond [dkt. #6] are denied as moot, and the Clerk of the Court is ordered
to close this case for administrative purposes. This administrative closing shall not be
construed as a dismissal or adjudication of Petitioner’s claims.
IT IS SO ORDERED.
s/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: November 19, 2012

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