Green v. Berghuis

Filing 6

ORDER granting 3 Motion to Stay and Closing Case for Administrative Purposes. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TONY DEL GREEN,
Petitioner,

CASE NO. 13-14589

v.

HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE

MARY BERGHUIS,
Respondent.
______________________________/
ORDER GRANTING PETITIONER’S MOTION FOR A STAY (Doc. 3)
AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES
Petitioner Tony Del Green, a state prisoner at Brooks Correctional Facility in
Muskegon Heights, Michigan, recently filed a pro se habeas corpus petition under 28
U.S.C. § 2254. The habeas petition challenges Petitioner’s Oakland County conviction
and sentence of sixteen to thirty years in prison for criminal sexual conduct in the third
degree, Mich. Comp. Laws § 750.520d. Also pending before the Court is Petitioner’s
motion to stay these proceedings and to hold the habeas petition in abeyance while he
pursues additional state remedies. For the reasons given below, the motion for a stay is
granted and the habeas petition will be held in abeyance.
I. Background
Petitioner alleges that he pleaded guilty in Oakland County Circuit Court to one
count of criminal sexual conduct in the third degree and on October 25, 2010, the trial

court sentenced him to imprisonment for sixteen to thirty years. Petitioner filed an
application for leave to appeal in the Michigan Court of Appeals, but the Court of
Appeals denied his application “for lack of merit in the grounds presented.” See People
v. Green, No. 306710 (Mich. Ct. App. Feb. 27, 2013) (unpublished). On September 3,
2013, the Michigan Supreme Court denied leave to appeal because it was not persuaded
to review the issues. See People v. Green, __ Mich. __; 836 N.W.2d 167 (2013) (table).
Petitioner states that he did not seek a writ of certiorari in the United States
Supreme Court. Instead, on November 4, 2013, he filed his pro se habeas corpus petition
and motion for a stay in this Court. Petitioner seeks habeas corpus relief on grounds that
(1) his trial attorney misled him about the sentence he would receive if he pleaded guilty,
(2) the trial court mis-scored the Michigan sentencing guidelines, and (3) appellate
counsel withdrew from the case and failed to file an appellate brief in Petitioner’s behalf.
In his motion for a stay, Petitioner states that he would like to return to state court
to file a motion for relief from judgment, raising the following additional claims: (1) a
jurisdictional defect arose as a result of an invalid felony complaint; (2) he was denied his
right to submit to a polygraph examination; and the prosecutor failed to fulfill his duty to
protect Petitioner’s constitutional rights; (3) the trial court coerced him into pleading
guilty by threatening to impose a life sentence if he elected to go to trial; (4) trial counsel
did nothing when the trial court threatened Petitioner with a life sentence if he went to
trial; and (5) appellate counsel failed to raise these issues on appeal. Petitioner seeks a
stay of this matter to avoid running afoul of the one-year statute of limitations set forth in
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the Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d).
II. Discussion
State prisoners must fairly present all their claims to the state courts 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). To avoid having a federal habeas
corpus petition deemed time-barred while the prisoner is exhausting state remedies, the
prisoner may file a “protective” petition for the writ of habeas corpus in federal court and
ask the federal court to stay and abey the federal habeas proceedings until state remedies
are exhausted. Pace v. DiGuglielmo, 544 U.S. 406, 416 (2005) (citing Rhines v. Weber,
544 U.S. 269, 278 (2005)). 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.
Rhines v. Weber, 544 U.S. at 275-76.
[I]t likely would be an abuse of discretion for a district court to deny a stay
and to dismiss 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. In such
circumstances, the district court should stay, rather than dismiss, the mixed
petition.
Id. at 278.
At least some of Petitioner’s unexhausted claims are potentially meritorious, and
Petitioner alleges that he is not engaged in dilatory tactics or a fishing expedition.
Furthermore, he has alleged that appellate counsel was ineffective for failing to raise all
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his claims on direct appeal. The Court concludes that it would not be an abuse of
discretion to hold the habeas petition in abeyance while Petitioner exhausts additional
state remedies. Accordingly, Petitioner’s motion for a stay (Doc. 3) is GRANTED.
The Court’s stay is conditioned on Petitioner filing a motion for relief from
judgment in the state trial court within sixty (60) days of the date of this order if he has
not already done so. Following exhaustion of state remedies, Petitioner may file an
amended habeas corpus petition and a motion to re-open this case. He shall use the same
caption and case number that appear on this order, and he shall file the documents within
sixty (60) days of exhausting state remedies if he is unsuccessful in state court.
In the meantime, the Clerk of the Court shall close this case for administrative
purposes. This administrative closing shall not be construed as a dismissal or
adjudication of Petitioner’s claims.

s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: January 10, 2014

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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on January
10, 2014.

s/Deborah Tofil
Case Manager

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