Preston v. Gidley

Filing 22

ORDER denying 20 Motion to Exhaust the Unexhausted Claims. Signed by Magistrate Judge Ellen S. Carmody. (VLun)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN

HARVEY PRESTON,
Petitioner,

Hon. Gordon J. Quist

v.

Case No. 2:14-CV-10606

LORI GIDLEY,
Respondent.
_________________________________/
ORDER
This matter is before the Court on Petitioner’s Motion to Exhaust the Unexhausted
Claims. (Dkt. #20). As discussed herein, Petitioner’s motion is denied.
Petitioner was convicted of carjacking, first degree home invasion, armed robbery, and
second degree criminal sexual conduct (two counts). Petitioner unsuccessfully appealed the matter in
state court after which he initiated the present action, asserting numerous claims for relief. Petitioner
concedes that many of the claims asserted in his habeas petition have not been properly exhausted.
Petitioner, therefore, moves to stay the present action so that he can return to state court to seek relief
on his unexhausted claims.
Barring circumstances which do not appear applicable, prisoners are permitted to file
only one petition for writ of habeas corpus. See 28 U.S.C. § 2244. However, the Court must dismiss
a mixed petition, asserting both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509
(1982). While the dismissal of a mixed petition would permit Petitioner the opportunity to pursue in
state court his unexhausted claims, because the relevant statute of limitations appears to have long since
expired, Petitioner would likely be prevented from returning to federal court to seek habeas relief.

In Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002), the Sixth Circuit held that when
the dismissal of a mixed petition could jeopardize the timeliness of a subsequent petition, the district
court may dismiss only the unexhausted claims and stay further proceedings on the remaining portion
of the petition until the petitioner has exhausted his claims in the state court. Id.; see also Cunningham
v. Hudson, 756 F.3d 477, 486 (6th Cir. 2014). While the present petition is not technically a mixed
petition, the logic and concern underlying the Palmer court’s decision is equally applicable here.
While the Court may stay a habeas action to permit a petitioner the opportunity to return
to state court to properly exhaust a claim, the Supreme Court has warned that such “should be available
only in limited circumstances” so as to not undermine the goals of the AEDPA. Rhines v. Weber, 544
U.S. 269, 277 (2005). Accordingly, granting a request for a stay in such circumstances should be
granted only where: (1) the petitioner has demonstrated good cause for his failure to exhaust the claims
at issue; (2) the unexhausted claims are potentially meritorious; and (3) the petitioner has not engaged
in intentionally dilatory litigation tactics. Id. at 278. Petitioner has failed to demonstrate good cause
for his failure to previously exhaust the claims in question. Petitioner has likewise failed to establish
that the claims in question possess any potential merit. As Petitioner has failed to meet the standard for
the relief requested, his request for a stay is denied.
IT IS SO ORDERED.

Date: April 27, 2016

/s/ Ellen S. Carmody
ELLEN S. CARMODY
United States Magistrate Judge

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