Currie v. Rapelje

Filing 13

Memorandum and Order Granting 12 Motion to Stay, Holding Petition in Abeyance and Administratively Closing Case. Signed by District Judge Avern Cohn. (SCha)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID CURRIE,
Petitioner,
CASE NO. 13-CV-10252
HONORABLE AVERN COHN

v.
LLOYD RAPELJE,
Respondent.
/

MEMORANDUM AND ORDER
GRANTING PETITIONER’S MOTION TO STAY (Doc. 12), HOLDING PETITION IN
ABEYANCE, AND ADMINISTRATIVELY CLOSING CASE
I.
This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner David Currie
(“Petitioner”) was convicted of assault with intent to murder, Mich. Comp. Laws §
750.83, carjacking, Mich. Comp. Laws § 750.529a(1), three counts of armed robbery,
Mich. Comp. Laws § 750.529, felon in possession of a firearm, Mich. Comp. Laws §
750.224f, and possession of a firearm during the commission of a felony, Mich. Comp.
Laws § 750.227b, following a jury trial in the Wayne County Circuit Court in 2007. He
was sentenced as a third habitual offender, Mich. Comp. Laws § 769.11, to concurrent
terms of 35 to 70 years imprisonment on the assault, carjacking, and armed robbery
convictions, a concurrent term of 5 to 10 years imprisonment on the felon in possession
conviction, and a consecutive term of two years imprisonment on the felony firearm
conviction. Petitioner raises claims concerning the sufficiency of the evidence, the
effectiveness of trial and appellate counsel, and the validity of his sentence.

Before the Court is Petitioner’s motion to stay this case and hold his habeas
petition in abeyance so that he can return to state court to exhaust his remedies as to
an unexhausted legal claim concerning his sentence based upon the United States
Supreme Court’s recent decision in Alleyne v. United States, 570 U.S. __, 133 S. Ct.
2151 (2013). The motion will be granted.
II.
Federal law provides that a habeas petitioner is only entitled to relief if he can
show that the state court adjudication of his claims resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law
as determined by the United States Supreme Court. 28 U.S.C. § 2254(d). 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 petition. 28 U.S.C. § 2254(b)(1)(A), (c); O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); Rust v. Zent,
17 F.3d 155, 160 (6th Cir. 1994). The exhaustion requirement is satisfied if a prisoner
invokes one complete round of the state's established appellate review process.
O'Sullivan, 526 U.S. at 845. The petitioner must have asserted both the factual and
legal bases for the claims in the state courts. McMeans, 228 F.3d at 681; see also
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). The claims
must also be presented to the state courts as federal constitutional issues. Koontz v.
Glossa, 731 F.2d 365, 368 (6th Cir. 1984). For a Michigan prisoner, each issue must be
presented to both the Michigan Court of Appeals and the Michigan Supreme Court to
satisfy the exhaustion requirement. Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.
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1990). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
Here, Petitioner seeks a stay so that he may present a new legal claim to the
state courts by filing a motion for relief from judgment pursuant to Michigan Court Rule
6.500 et seq. with the state trial court and then pursuing an appeal if necessary. A
federal district court has discretion to stay a habeas petition to allow a petitioner to
present unexhausted claims to the state courts in the first instance and then return to
federal court on a perfected petition. Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay
and abeyance is available only in “limited circumstances” such as when the one-year
statute of limitations applicable to federal habeas actions poses a concern, and when
the petitioner demonstrates “good cause” for the failure to exhaust state court remedies
before proceeding in federal court, the unexhausted claims are not “plainly meritless,”
and the petitioner has not engaged in intentionally dilatory tactics. Id. at 277.
Petitioner has shown the need for a stay. His new sentencing claim is
unexhausted and the one-year limitations period applicable to federal habeas actions
could pose a problem if the Court were to dismiss the petition to allow for further
exhaustion of state remedies. See 28 U.S.C. § 2244(d)(1). Additionally, given that the
claim is based upon a new Supreme Court decision, Petitioner has shown good cause
for failing to previously present it to the state courts. The Court further finds that the
unexhausted claim does not appear to be plainly meritless and there is no evidence of
intentional delay. Petitioner's unexhausted claim should be addressed to, and
considered by, the Michigan courts in the first instance. Therefore, proceedings will be
stayed and the Court will hold the petition in abeyance pending his completion of that
process.
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III.
Accordingly, Petitioner’s motion to stay the proceedings is GRANTED. The case
is stayed and the petition is held in abeyance. The stay is conditioned on Petitioner
presenting his unexhausted claim to the state courts within 60 days of this order by filing
a motion for relief from judgment with the trial court. Hill v. Anderson, 300 F.3d 679,
683 (6th Cir. 2002). The stay is further conditioned on Petitioner’s return to this Court
with a motion to reopen and amend his petition, using the same caption and case
number, within 60 days after fully exhausting state court remedies. Palmer v. Carlton,
276 F.3d 777, 781 (6th Cir. 2002) (adopting approach taken in Zarvela v. Artuz, 254
F.3d 374, 381 (2d Cir. 2001)). Should Petitioner fail to comply with these conditions, his
case may be dismissed. Finally, this case is CLOSED for administrative purposes
pending compliance with these conditions.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: October 9, 2013

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, October 9, 2013, by electronic and/or ordinary mail.

S/Sakne Chami
Case Manager, [phone]

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