Gibson v. MacLaren

Filing 6

OPINION and ORDER holding in abeyance 1 Petition for Writ of Habeas Corpus and administratively closing the case. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HAMZA GIBSON,
Case No. 12-15650
HONORABLE GEORGE CARAM STEEH

Petitioner,
v.
DUNCAN MCLAREN,
Respondent.
/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR
WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE
Hamza Gibson, ("Petitioner"), currently confined at the Lakeland Correctional Facility
in Coldwater, Michigan, has 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, assault with intent to commit great bodily harm, and aggravated
domestic violence. Having reviewed the petition, this Court determines that the petition is
subject to dismissal because it contains claims which have not been exhausted with the
state courts. For the reasons stated below, in lieu of dismissing the petition, the Court will
hold the petition in abeyance and will stay the proceedings under the terms outlined below
in the opinion to permit Petitioner to return to the state court to exhaust his unexhausted
claims. If he fails to do so, the petition shall be dismissed without prejudice. The Court will
also administratively close the case.

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I. Background
Petitioner was convicted of the above offenses following a bench trial in the Wayne
County Circuit Court. On his direct appeal, the Michigan Court of Appeals affirmed
Petitioner’s convictions for assault with intent to murder and domestic violence, but vacated
on double jeopardy grounds his conviction for assault with intent to commit great bodily
harm less than murder. People v. Gibson, No. 297814 (Mich. Ct. App. July 19, 2011). The
Michigan Supreme Court denied leave to appeal. People v. Gibson, 490 Mich. 971 (2011).
Petitioner asserts that he has not yet filed a motion for post conviction relief.
Petitioner seeks a writ of habeas corpus on the following grounds: 1) insufficient
evidence of intent to murder; 2) double jeopardy; 3) denial of right to effective appeal; and
4) denial of due process and the effective assistance of counsel.
II. Discussion
As a general rule, a state prisoner seeking federal habeas relief must first exhaust his
available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b)
and (c). The Antiterrorism and Effective Death Penalty Act (AEDPA) preserves the
traditional total exhaustion requirement in habeas cases. Wogenstahl v. Mitchell, 668 F.3d
307, 322 (6th Cir. 2012). The total exhaustion requirement, generally speaking, forbids
federal habeas courts from granting relief on "mixed petitions," those containing both
exhausted and unexhausted claims. Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009).
Although exhaustion is not a jurisdictional matter, "it is a threshold question that must be
resolved" before a federal court can reach the merits of any claim contained in a habeas
petition. See Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009). Therefore, each claim
must be reviewed by a federal court for exhaustion before any claim may be reviewed on
the merits by a district court. Id. A federal habeas court may raise sua sponte the
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petitioner's failure to exhaust state court remedies. Granberry v. Greer, 481 U.S. 129
(1987).
The petition in this case is a mixed petition. Petitioner acknowledges on the face of
his petition that he did not exhaust his third and fourth claims. He asserts that he has not
raised these claims because he was unable to obtain documents from his appellate counsel
in support of the claims, and motions filed with the state court to receive these documents
have not produced the documents in a timely manner.
A federal district court has the discretion to stay a mixed habeas petition containing
exhausted and unexhausted claims in order to allow the petitioner to present his
unexhausted claims to the state courts in the first instance, and then to return to the federal
district court for habeas review of his or her completely exhausted petition. Rhines v.
Weber, 544 U.S. 269, 275-78 (2005). Stay and abeyance is available only when the district
court determines that there was good cause for the petitioner's failure to exhaust his claims
in state court, the unexhausted claims are not plainly meritless, and the prisoner has not
engaged in intentional delay. Id., 277-78. However, "it likely would be an abuse of
discretion for a district court to deny a stay and to dismiss a mixed petition if the petitioner
had good cause for his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in intentionally dilatory
litigation tactics." Id. at 278.
Petitioner’s unexhausted claims do not appear to be "plainly meritless." See Rhines,
544 U.S. at 277. Further, Petitioner alleges that he has been impeded by former counsel
and the state courts from obtaining documents in support of his unexhausted claims, which
may constitute good cause for his delay in filing his motion for relief from judgment in state
court. It also does not appear that petitioner has engaged in "intentionally dilatory tactics."
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See id. at 277. Finally, based on the allegations in the petition, it appears that the AEDPA
limitations period is close to running out. The Court will therefore exercise its discretion to
stay, rather than dismiss, the petition.
When 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 imposes upon Petitioner the following 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 by filing a post-conviction motion
for relief from judgment with the state trial court within sixty days from the date of this
Order, if he has not done so already. See id. Further, he must ask this Court to lift the stay
within sixty days of exhausting his state court remedies. 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." Palmer, 276 F. 3d at 781 (internal quotation
omitted).
III. ORDER
It is ORDERED that Petitioner may file a motion for relief from judgment with the state
court within sixty (60) days of receipt of this Court’s order, if he has not filed such a motion
already. If Petitioner fails to file a motion for relief from judgment with the state courts by
that date, the Court will dismiss his petition without prejudice.
If Petitioner files a motion for relief from judgment, he shall notify this Court that such
motion papers have been filed in state court. The case will then be held in abeyance
pending Petitioner's exhaustion of the claims. Petitioner shall re-file a habeas petition using
the same caption and case number within sixty (60) days after the conclusion of the state
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court post-conviction proceedings. Petitioner is free at that time to file an amended habeas
petition which contain any newly exhausted claims.
To avoid administrative difficulties, the Court ORDERS the Clerk of Court to CLOSE
this case for statistical purposes only.
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.
SO ORDERED.
Dated: April 1, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 1, 2013, by electronic and/or ordinary mail and also on
Hamza Gibson, #529234, Lakeland Correctional Facility,
141 First Street, Coldwater, MI 49036
s/Barbara Radke
Deputy Clerk

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