Brown v. Rivard

Filing 3

OPINION and ORDER Granting Petitioner's Motion to Stay the Proceedings, Holding the 1 Petition for Writ of Habeas Corput in Abeyance, and Administratively Closing the Case re 1 Petition for Writ of Habeas Corpus Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM JESSIE BROWN,
Petitioner,
v.

Civil No. 2:13-CV-14129
HONORABLE GERALD E. ROSEN
CHIEF UNITED STATES DISTRICT JUDGE

STEVEN RIVARD,
Respondent,
_________________________________/
OPINION AND ORDER GRANTING PETITIONER’S MOTION TO STAY THE
PROCEEDINGS, HOLDING THE PETITION FOR WRIT OF HABEAS CORPUS IN
ABEYANCE, AND ADMINISTRATIVELY CLOSING THE CASE.
William Jessie Brown, (“Petitioner”), presently confined at the St. Louis Correctional
Facility in St. Louis, Michigan, has filed a pro se petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Although petitioner does not specifically delineate the state court
judgment that he is challenging in his petition, the Michigan Department of Corrections’
Offender Tracking Information System (OTIS), which this Court is permitted to take judicial
notice of, See Ward v. Wolfenbarger,323 F. Supp. 2d 818, 821, n. 3 (E.D. Mich. 2004),
indicates that petitioner was convicted in the Berrien County Circuit Court of one count of
assault with a dangerous weapon, M.C.L.A. 750.82, one count of first-degree criminal
sexual conduct, M.C.L.A. 750.520b, one count of felony-firearm, M.C.L.A. 750.227b, and
being a fourth felony habitual offender, M.C.L.A. 769.12. Petitioner has also filed a motion
to hold the petition in abeyance to permit him to return to the state courts to exhaust the
claims that he wishes to raise in his current habeas application. For the reasons stated
below, the Court will hold the petition in abeyance and will stay the proceedings under the
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terms outlined below in the opinion to permit petitioner to complete his post-conviction
proceedings in the state court or courts, failing which the petition shall be dismissed without
prejudice. The Court will also administratively close the case.
I. Background
Petitioner was convicted of the above offenses following a jury trial in the Berrien
County Circuit Court. Petitioner’s conviction was affirmed on direct appeal. People v.
Brown, No. 306201, 2012 WL 4899695 (Mich.Ct.App. October 16, 2012); lv. den. 493 Mich.
954, 828 N.W.2d 367 (2013). 1
Petitioner has now filed a instant petition for writ of habeas corpus, in which he
seeks habeas relief on the following grounds:
I. Whether the 6th Amendment right to counsel was violated by appeal
counsel’s failure to cite and make any reference to the record in [the
appellate] brief according to M.C.R. 7.211.
II. Whether 6th Amendment right to counsel was violated by appeal counsel’s
failure to cite any record of trial in motion for new trial.
Petitioner has also filed a motion to stay proceedings, so that he can return to the
state courts and file a post-conviction motion to exhaust these two claims.
II. Discussion
The instant petition is subject to dismissal, because petitioner, by his own admission,
has yet to exhaust his claims with the state courts.
As a general rule, a state prisoner seeking federal habeas relief must first exhaust

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The Court obtained this information from Westlaw’s website, www.westlaw.com. Public records
and government documents, including those available from reliable sources on the Internet, are subject to
judicial notice. See United States ex. rel. Dingle v. BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich.
2003).

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his available state court remedies before raising a claim in federal court. 28 U.S.C. §
2254(b) and (c). See Picard v. Connor, 404 U. S. 270, 275-78 (1971). The Antiterrorism
and Effective Death Penalty Act (AEDPA) preserves the traditional exhaustion requirement,
which mandates dismissal of a habeas petition containing claims that a petitioner has a
right to raise in the state courts but has failed to do so. See Welch v. Burke, 49 F. Supp.
2d 992, 998 (E.D. Mich. 1999). 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 federal court. Id. Petitioner’s claim of
ineffective assistance of appellate counsel is subject to the exhaustion requirement. See
Baldwin v. Reese, 541 U.S. 27, 30-33 (2004).
The Court’s only concern in dismissing the current petition involves the possibility
that petitioner might be prevented under the one year statute of limitations contained within
28 U.S.C. § 2244(d)(1) from re-filing a petition for writ of habeas corpus following the
exhaustion of his claim in the state courts.
The U.S. Supreme Court 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, as petitioner has done, 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 (2005)). A federal court may stay a federal habeas petition and hold further
proceedings in abeyance pending resolution of state court post-conviction proceedings,
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provided there is good cause for failure to exhaust claims and that the unexhausted claims
are not “plainly meritless.” Rhines, 544 U.S. at 278.
In the present case, petitioner’s claims do not appear to be “plainly meritless.”
Petitioner also has good cause for failing to raise his ineffective assistance of appellate
counsel claims earlier because state post-conviction review would be the first opportunity
that he had to raise these claims in the Michigan courts. See Guilmette v. Howes, 624 F.
3d 286, 291 (6th Cir. 2010). The mere fact that petitioner’s claims are unexhausted does
not prevent this Court from holding his petition in abeyance because “the Supreme Court
has indicated that a petitioner may file a “protective” petition meriting a stay under Pace
(sic) even where only unexhausted claims are at issue.” Heleva v. Brooks, 581 F. 3d 187,
192 (3rd Cir. 2009).
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. Therefore, 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).
In order to avoid petitioner being time-barred from seeking habeas relief following
his return to the state courts, the Court will hold the present petition in abeyance. This
tolling, however, is conditioned upon petitioner initiating his state post-conviction remedies
within ninety days of the Court’s order and returning to federal court within thirty days of
completing the exhaustion of his state court post-conviction remedies. See Hargrove v.
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Brigano, 300 F. 3d 717, 718 (6th Cir. 2002).
Petitioner can exhaust these claims by filing a post-conviction motion for relief from
judgment with the Berrien County Circuit Court under M.C.R. 6.502. A trial court is
authorized to appoint counsel for petitioner, seek a response from the prosecutor, expand
the record, permit oral argument, and hold an evidentiary hearing. M.C.R. 6.505-6.507,
6.508 (B) and (C). Denial of a motion for relief from judgment is reviewable by the
Michigan Court of Appeals and the Michigan Supreme Court upon the filing of an
application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. See Nasr v.
Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997). Petitioner, in fact, is required to appeal
the denial of his post-conviction motion to the Michigan Court of Appeals and the Michigan
Supreme Court in order to properly exhaust any claims that he would raise in his postconviction motion. See e.g. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002).
III. ORDER
Accordingly, for the reasons stated, the Court GRANTS Petitioner's motion to hold
the petition in abeyance [Court Dkt. Entry # 1], and STAYS this action so that Petitioner can
fully exhaust state court remedies as to his federal claims. The stay is conditioned on
Petitioner presenting his unexhausted claims to the state courts within 90 days of the filing
date of this order, if he has not already done so. See Hill v. Anderson, 300 F.3d 679, 683
(6th Cir. 2002). The stay is further conditioned on Petitioner’s return to this Court with an
amended petition, using the same caption and case number, within 30 days of exhausting
state remedies. See Palmer v. Carlton, 276 F.3d at 781. Should Petitioner fail to comply
with these conditions, his case may be subject to dismissal.

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To avoid administrative difficulties, the Court ORDERS the Clerk of Court to
ADMINISTRATIVELY 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 668, 677 (E.D. Mich. 2002)
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.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: October 2, 2013
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on October 2, 2013, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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