Johnson v. Rivard

Filing 8

ORDER granting 3 petitioner's Motion to hold his habeas petition in abeyance and closing case for administrative purposes. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARRYL LYNN JOHNSON,
Petitioner,

Case No. 13-13080

v.

Honorable George Caram Steeh
Honorable Laurie J. Michelson

STEVE RIVARD,
Respondent.
______________________________/
ORDER GRANTING PETITIONER’S MOTION
TO HOLD HIS HABEAS PETITION IN ABEYANCE AND
CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES
On July 18, 2013, petitioner Darryl Lynn Johnson filed a pro se habeas corpus
petition under 28 U.S.C. § 2254 and a motion to hold the habeas petition in abeyance. The
habeas petition challenges petitioner’s Wayne County convictions for assault with intent to
commit murder, Mich. Comp. Laws § 750.83, felon in possession of a firearm, Mich. Comp.
Laws § 750.224f, carrying a concealed weapon, Mich. Comp. Laws § 750.227, and
possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b.
Petitioner was sentenced as a habitual offender to concurrent terms of thirty to fifty years
in prison for the assault, twenty to forty years in prison for being a felon in possession of
a firearm, and fifteen to thirty years in prison for carrying a concealed weapon. He received
a consecutive sentence of two years in prison for the felony firearm conviction. The
Michigan Court of Appeals denied petitioner’s delayed application for leave to appeal, and
on July 24, 2012, the Michigan Supreme Court denied leave to appeal because it was not
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persuaded to review the issues. See People v. Johnson, 492 Mich. 855; 817 N.W.2d 83
(2012) (table).
Petitioner argues in his habeas corpus petition that the trial court deprived him of his
constitutional right to present a defense by refusing to instruct the jury on self defense.
Petitioner states that he exhausted state remedies for this claim, but he wishes to present
the Court with a new claim that his trial attorney was ineffective for failing to properly raise
his claim of self defense. This new claim has not been raised in the state courts.
Consequently, petitioner wants the Court to hold his habeas petition in abeyance while he
exhausts state remedies for his claim about trial counsel.
The doctrine of exhaustion of state remedies requires state prisoners to 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); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 844-45 (1999); Nali
v. Phillips, 681 F.3d 837, 851 (6th Cir.), cert. denied, __ U.S. __, 133 S. Ct. 535 (2012).
The exhaustion requirement is satisfied if a prisoner “invok[es] one complete round of the
State’s established appellate review process,” including a petition for discretionary review
in the state supreme court, “when that review is part of the ordinary appellate review
procedure in the State.” O’Sullivan v. Boerckel, 526 U.S. at 845, 847. This means that a
habeas petitioner must present each issue to the state court of appeals and to the state
supreme court. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009).
Petitioner concedes that he did not exhaust state remedies for his ineffectiveassistance-of-counsel claim. Although federal district courts ordinarily must dismiss a
habeas petition containing any claims that have not been exhausted in the state courts,
Rose v. Lundy, 455 U.S. 509, 510 (1982), a dismissal of this case could preclude future
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consideration of petitioner’s claims due to the expiration of the one-year statute of
limitations. See 28 U.S.C. § 2244(d). In similar circumstances, some courts have adopted
a “stay-and-abeyance” approach. Rhines v. Weber, 544 U.S. 269, 275 (2005). Under this
approach, rather than dismissing a case for failure to exhaust state remedies, a court stays
the federal proceedings and holds the habeas petition in abeyance while the inmate
pursues state remedies for his or her 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.
It is not an abuse of discretion to stay a “mixed” petition of exhausted and
unexhausted claims “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. In those circumstances, “the
petitioner's interest in obtaining federal review of his claims outweighs the competing
interests in finality and speedy resolution of federal petitions.” Id.
Petitioner has not explained why he failed to raise his claim about trial counsel on
direct appeal, but the unexhausted claim is not plainly meritless, and petitioner does not
appear to be engaged in intentionally dilatory litigation tactics. Consequently, petitioner’s
motion to hold his habeas petition in abeyance (Doc. 3) is GRANTED.
Petitioner shall have fifty-six days (56) from the date of this order to file a motion
for relief from judgment under Michigan Court Rule 6.502 in the state trial court. If he is
unsuccessful in the trial court and on appeal from the trial court’s decision, he may return
to this Court and file an amended habeas corpus petition and a motion to re-open this case,

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using the same case number that appears on this order. An amended petition and motion
to re-open this case should be filed within fifty-six (56) days of exhausting state remedies.
The Court orders the Clerk of the Court to close this case for administrative
purposes. Nothing in this order shall be construed as an adjudication of petitioner’s claims.
Dated: October 8, 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
October 8, 2013, by electronic and/or ordinary mail and also
on Darryl Johnson #561762, St. Louis Correctional Facility,
8585 N. Croswell Road, St. Louis, MI 48880.
s/Barbara Radke
Deputy Clerk

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