Ashley v. Rapelje

Filing 12

OPINION AND ORDER GRANTING PETITIONER'S MOTION TO HOLD THE PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE [# 7], DENYING MOTION FOR BOND PENDING REVIEW [# 5], AND DENYING MOTION FOR EVIDENTIARY HEARING [# 6]. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRIS WILLIAM ASHLEY,
Petitioner,
CASE NO. 2:13-cv-13002
HONORABLE GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE

v.
LLOYD RAPELJE,
Respondent.
_______________________________/

OPINION AND ORDER GRANTING PETITIONER'S MOTION TO HOLD THE
PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE [# 7], DENYING
MOTION FOR BOND PENDING REVIEW [# 5], AND DENYING MOTION FOR
EVIDENTIARY HEARING [# 6]
This is a habeas corpus case filed by Michigan prisoner Chris Ashley. On June 22, 2010,
Petitioner was convicted after a trial in the Oakland Circuit Court of armed robbery, and using a
financial transaction device without permission. The petition raises six claims: (1) Petitioner’s car
was subject to an illegal search; (2) Petitioner was denied funds to hire an expert witness; (3) the
trial court erroneously denied the jury’s request to examine evidence; (4) the trial court erroneously
admitted evidence regarding Petitioner’s behavior in the hospital; (5) the prosecutor committed
misconduct; and (6) inaccurate information was used to impose Petitioner’s sentence. Petitioner has
filed a motion to stay the habeas corpus proceeding to permit him to exhaust his state court remedies
with respect to an additional claim. For the reasons stated below, the Court will GRANT the
Petition’s Motion to Hold the Writ of Habeas Corpus in Abeyance [#7], stay the proceedings under
the terms outlined in this opinion to permit Petitioner to exhaust this claim, and DENY Petitoiner’s
Motion for Bond Pending Review [#5] and Motion for an Evidentiary Hearing [#6] as moot.

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I. Background
Following his conviction, Petitioner filed an appeal of right in the Michigan Court of
Appeals. The state appellate court affirmed. People v. Ashley, No. 299251 (Mich. Ct. App. October
18, 2011). Petitioner then sought relief in the Michigan Supreme Court, but that court denied leave
to appeal. People v. Ashley, No. 144129 (Mich. Sup. Ct. April 24, 2012). Petitioner commenced the
instant habeas proceeding by placing his petition in the prison mail system on July 11, 2013.
Presently before the Court is Petitioner’s Motion to Stay Proceedings. He wishes to exhaust
an additional claim asserting that his trial counsel was ineffective for failing to communicate and
advise him to accept a favorable plea bargain prior to trial.
II. Discussion
Federal district courts are authorized to stay fully exhausted federal habeas petitions pending
the exhaustion of other claims. Moritz v. Lafler, No. 2:07-CV-15369, 2008 WL 783751, at *2 (E.D.
Mich. Mar. 19, 2008)(citing Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000)). The Sixth
Circuit Court of Appeals has advised that it is preferable for a district court to stay proceedings
pending exhaustion on a habeas petition, rather than dismissing the petition without prejudice.
Griffin v. Rogers, 308 F.3d 647, 652, n. 1 (6th Cir. 2002).
In this case, Petitioner requests a stay because he alleges that he would like to file a motion
for relief from judgment raising an additional claim challenging his conviction.
A common circumstance calling for abating a habeas petition arises, when a Petitioner
wishes to exhaust all claims, but the dismissal without prejudice of the petition would probably
result in the second petition being time barred by the AEDPA's statute of limitations. See Hargrove
v. Brigano, 300 F. 3d 717, 720-21 (6th Cir. 2002). It appears that Petitioner has less than one month

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remaining on the limitations period when he filed his habeas petition. The limitations period began
running on or about July 24, 2012, when the time for filing a petition for writ of certiorari in the
United States Supreme Court expired. Petitioner commenced this action on July 11, 2013, with
approximately two weeks remaining on the limitations period. Accordingly, if the Court were to
dismiss without prejudice the petition on exhaustion grounds, Petitioner would find it difficult to
timely file his petition after he finished exhausting his claims.
The U.S. Supreme Court, in fact, has 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, 278 (2005)). The Court will, therefore, grant
Petitioner’s motion.
However, even where 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 there are no delays
by Petitioner in exhausting his state court remedies, this Court will impose upon Petitioner time
limits within which he 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 pursue post-conviction
proceedings in the state courts. This tolling is conditioned upon Petitioner filing a motion for relief
from judgment in the trial court within sixty (60) days and then returning to federal court within
sixty (60) days of completing the exhaustion of state court post-conviction remedies. Hargrove, 300

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F. 3d at 721; See also Geeter v. Bouchard, 293 F. Supp. 2d 773, 775 (E.D. Mich. 2003).
III. ORDER
It is ORDERED that Petitioner's Motion to Hold the Petition for Writ of Habeas Corpus in
abeyance [#7] is GRANTED. Petitioner may file a motion for relief from judgment with the state
trial court within sixty (60) days of receipt of this Court's order. If Petitioner fails to do so by that
date, the Court will dismiss his petition without prejudice.
If Petitioner files the motion, he shall notify this Court that such papers have been filed in
state court. The case will then be held in abeyance pending Petitioner's exhaustion of the claims.
Petitioner shall refile a habeas petition within sixty (60) days after the conclusion of the state court
post-conviction proceedings. Petitioner is free at that time to file an amended habeas petition.
To avoid administrative difficulties, the Court ORDERS the Clerk of Court to CLOSE 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 v. Bock, 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.
It is further ORDERED that because the Court is staying the petition, Petitioner’s pending
Motions for an Evidentiary Hearing [#6] and Bond Pending Review [#5] are DENIED as moot.

/s/Gershwin A Drain
Gershwin A. Drain
United States District Judge
Dated: October 22, 2013

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