Buriel v. Smith

Filing 14

ORDER Denying 13 Motion to Stay Proceedings. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Esau Buriel,
Petitioner,

Case No. 13-11703
Hon. Sean F. Cox

v.
Willie Smith,
Respondent.
_____________________________/

ORDER DENYING PETITIONER’S MOTION TO STAY PROCEEDINGS [dkt. 13]
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Esau Buriel
(“Petitioner”) was convicted in the Saginaw Circuit Court of first-degree murder, and carrying a
weapon with unlawful intent. Petitioner’s habeas application raises three claims: (1) the trial court
erred in failing to dismiss the charges on the grounds of pre-indictment delay; (2) the trial court
violated the Ex Post Facto Clause by allowing evidence to be admitted that would have been ruled
inadmissible at the time of the offense; and (3) Petitioner’s convictions are against the great weight
of the evidence. The matter is before the Court on Petitioner's motion to stay his habeas proceeding
so that he may exhaust additional claims in the state courts that he claims are likely to result in the
reversal of his convictions. For the reasons stated below, the Court denies Petitioner’s motion.
Background
Following Petitioner’s conviction, he filed an application for leave to appeal in the Michigan
Court of Appeals, raising his current habeas claims. On August 7, 2012, the Michigan Court of
Appeals affirmed in an unpublished opinion. People v. Buriel, No. 304873 (Mich. Ct. App. Aug. 7,
2012). On March 4, 2013, the Michigan Supreme Court denied Petitioner’s application because it

was not persuaded that the questions presented should be reviewed. People v. Buriel, No. 145894
(Mich. Sup. Ct. March 4, 2013). For statute-of-limitations purposes, his conviction became final 90
days later, when the time for filing a petition for writ of certiorari expired, on or about June 2, 2013.
See Jimenez v. Quarterman, 555 U.S. 113, 120 (2009).
Petitioner states that he intends to file a motion for relief from judgment in the trial court
raising numerous new claims that he asserts will likely result in a reversal of his convictions.
Petitioner’s motion states that he wants his habeas petition to be stayed and held in abeyance
pending exhaustion of his state court remedies with respect to his two new claims.
Discussion
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254 must first
exhaust all state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state prisoners
must give the state courts one full fair opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate review process”); Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994). To satisfy this requirement, the claims must be “fairly presented” to the state
courts, meaning that the prisoner must have asserted both the factual and legal bases for the claims
in the state courts. See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); 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. See Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir.
1984). A Michigan prisoner must properly present each issue he seeks to raise in a federal habeas
proceeding to both the Michigan Court of Appeals and the Michigan Supreme Court to satisfy the
exhaustion requirement. See Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999); see also
Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). While the exhaustion requirement is not

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jurisdictional, a “strong presumption” exists that a petitioner must exhaust all available state
remedies before seeking federal habeas review. Granberry v. Greer, 481 U.S. 129, 131, 134-35
(1987). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
A federal district court has discretion to stay a petition to allow a petitioner to present
unexhausted claims to the state courts and then return to federal court on a perfected petition. See
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 poses a concern, and when the
petitioner demonstrates “good cause” for the failure to exhaust state remedies before proceeding in
federal court, the petitioner has not engaged in intentionally dilatory litigation tactics, and the
unexhausted claims are not “plainly meritless.” Id. at 277.
Petitioner has not shown the need for a stay. The one-year statute of limitations applicable
to federal habeas actions, see 28 U.S.C. § 2244(d), does not pose a concern. The one-year limitations
period does not begin to run until 90 days after the conclusion of direct appeal, see Jimenez, 555
U.S. at 120 (stating that a conviction becomes final when "the time for filing a certiorari petition
expires"); Lawrence v. Florida, 549 U.S. 327, 333 (2007). The Michigan Supreme Court denied
Petitioner leave to appeal on March 4, 2013, and the time for seeking a writ of certiorari with the
United States Supreme Court expired 90-days later, on about June 2, 2013. The instant habeas
petition was filed on April 15, 2013, before the limitations period even began to run.
Given that no time ran on the limitations period when the petition was filed, Petitioner has
sufficient time to return to federal court should he wish to do so after he exhausts his additional
claims. Given such circumstances, a stay is unnecessary and unwarranted.

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Conclusion & Order
Accordingly, the Court DENIES Petitioner’s motion for stay and abeyance of his habeas
proceedings.
Should Petitioner wish to have the Court dismiss without prejudice the present petition so
that he may exhaust his additional issues in the state courts and have them considered here, he must
move for a non-prejudicial dismissal of his habeas petition within thirty (30) days of the filing date
of this order. If he does not do so, the Court shall proceed on the claims contained in the pending
petition.
IT IS SO ORDERED.

Dated: February 11, 2014

S/ Sean F. Cox
Sean F. Cox
U. S. District Court Judge

I hereby certify that on February 11, 2014, the foregoing document was served upon counsel of
record by electronic means and upon Esau Buriel by First Class Mail at the address below:
Esau Buriel
174568
Oaks Correctional Facility
1500 Caberfae Highway
Manistee, MI 49660
Dated: February 11, 2014

S/ J. McCoy
Case Manager

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