Glover v. Woods

Filing 3

ORDER granting petitioner's 2 MOTION to hold in abeyance habeas petition; Case closed for administrative purposes. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THOMAS GLOVER,
Petitioner,
Case No. 14-12630
Honorable Nancy G. Edmunds

v.
JEFFREY WOODS,
Respondent.
_____________________________/

ORDER GRANTING PETITIONER’S MOTION TO HOLD
HIS HABEAS PETITION IN ABEYANCE
AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES
I. Background
This matter is pending before the Court on petitioner Thomas Glover’s recent pro
se habeas corpus petition and motion to hold the habeas petition in abeyance. Petitioner
is challenging his state convictions for second-degree murder, Mich. Comp. Laws §
750.317, assault with intent to commit murder, Mich. Comp. Laws § 750.83, felon in
possession of a firearm, Mich. Comp. Laws § 750.224f, and possession of a firearm during
the commission of a felony, Mich. Comp. Laws § 750.227b. Petitioner is incarcerated at
Chippewa Correctional Facility in Kincheloe, Michigan where he is serving a sentence of
forty-six to seventy-five years in prison for the murder conviction, thirty to sixty years for the
assault conviction, four to seven and a half years for the felon-in-possession conviction,
and two years for the felony firearm conviction.
On appeal from his convictions, Petitioner challenged the sufficiency of the evidence,
the length of his sentence, the prosecutor’s alleged mischaracterization of testimony and

medical records, and his trial attorney’s failure to (a) investigate, (b) present evidence and
testimony to support the defense theory, (c) introduce the victim’s criminal history, and (d)
object to the prosecutor’s conduct. The Michigan Court of Appeals affirmed Petitioner’s
convictions in an unpublished decision, see People v. Glover, No. 302412, 2012 WL
1415122 (Mich. Ct. App. Apr. 24, 2012), and on September 24, 2012, the Michigan
Supreme Court denied leave to appeal. See People v. Glover, 820 N.W.2d 805 (Mich.
2012) (table).
On December 4, 2013, Petitioner filed a motion for relief from judgment in the state
trial court. His motion challenged the prosecutor’s conduct (use of compound questions
and mischaracterization of evidence), defense counsel’s effectiveness, and appellate
counsel’s effectiveness. Additionally, Petitioner alleged that appellate counsel was cause
for not raising these issues earlier.

On February 14, 2014, the state court denied

Petitioner’s motion. Petitioner appealed the trial court’s decision to the Michigan Court of
Appeals and, on June 24, 2014, he submitted his habeas corpus petition to prison officials
for mailing to this Court. At the time, his appeal from the trial court’s ruling on his motion
for relief from judgment was still pending in the Michigan Court of Appeals.
The habeas grounds for relief read:
I.

Verdicts of guilty upon insufficient evidence constituted a denial
of due process.

2.

Sentences imposed violated constitutional guarantees against
cruel and/or unusual punishment.

3.

The prosecutor’s perfidious and odious mischaracterization of
critical evidence and statement undermined the defendant’s
theory of self-defense, depriving the defendant of a defense
and a fair trial.
2

4.

Defendant was denied his state and federal constitutional right
to have the effective assistance of defense counsel pursuant
to US Const, AMS VI, XIV and Const 1963, Art 1, §§ 17, 20
where defense counsel failed to or did not investigate and or
admit witnesses and other evidence that would have supported
the defendant’s claim of self defense.

5.

[Standard (4)] The prosecutor’s perfidious and odious
mischaracterization of critical evidence and statements
undermined the defendant’s theory of self-defense, depriving
the defendant of a defense and a fair trial.

6.

The defendant was denied his state and federal constitutional
right to have the effective assistance of defense counsel
pursuant to US Const, AMS VI, XIV and Const 1963, Art 1, §§
17, 20 where defense counsel failed to or did not investigate
and or admit witnesses and other evidence that would have
supported the defendant’s claim of self-defense.

The Court does not understand why Petitioner repeated claim three in claim five and
claim four in claim six. In any event, Petitioner seeks to hold these six claims in abeyance
while he continues to pursue state remedies.
II. Discussion
The doctrine of exhaustion of state remedies requires state prisoners to 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)(A); O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999); Nali v. Phillips, 681 F.3d 837, 851 (6th Cir.), cert. denied, __ U.S. __, 133 S. Ct.
535 (2012). This 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. So, to be properly
exhausted, each claim must have been fairly presented to the state court of appeals and
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to the state supreme court. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009).
Under the “stay-and-abeyance” procedure approved by the Supreme Court in
Rhines v. Weber, 544 U.S. 269 (2005), a court may stay a federal proceeding and hold a
habeas petition in abeyance while the inmate returns to state court to exhaust state
remedies for previously unexhausted claims. Id. at 275. After the petitioner exhausts state
remedies, the district court can lift its stay and allow the inmate to proceed in federal court.
Id. at 275-76.
A stay is “available only in limited circumstances,” such as “when the district court
determines there was good cause for the petitioner’s failure to exhaust his claims first in
state court,” the unexhausted claims are not “plainly meritless,” and the petitioner is not
“engage[d] in abusive litigation tactics or intentional delay.” Id. 277-78. But district courts
are not prevented from “retain[ing] jurisdiction over a meritorious claim and stay[ing]
proceedings pending the complete exhaustion of state remedies,” or from “deeming the
limitations period tolled for [a habeas] petition as a matter of equity.” Duncan v. Walker,
533 U.S. 167, 182-83 (2001) (Stevens, J., concurring). In fact, it is preferable for a district
court to retain jurisdiction over exhausted claims and stay proceedings pending exhaustion
of state remedies when the failure to retain jurisdiction would foreclose federal review of
meritorious claims due to the lapse of the one-year statute of limitations for habeas
petitions.1 Id. at 183.
Petitioner apparently has raised at least one new claim (ineffective assistance of
appellate counsel) in his motion for relief from judgment and subsequent appeal. And a

1

See 28 U.S.C. § 2244(d)(1) (establishing a one-year period of limitation for
state prisoners to file a federal habeas corpus petition).
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dismissal of this case while Petitioner pursues state remedies could preclude consideration
of a second or subsequent habeas petition due to the expiration of the one-year statute of
limitations for habeas petitions.2
The Court therefore does not believe it would be an abuse of discretion to stay this
case while Petitioner continues to pursue state remedies. Accordingly, Petitioner’s motion
to hold his habeas corpus petition in abeyance (Dkt. 2) is GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court shall close this case for
administrative purposes. Nothing in this order shall be construed as an adjudication of
Petitioner’s claims.
IT IS FURTHER ORDERED that, if Petitioner is unsuccessful in state court, he may
return to this Court and file an amended habeas corpus petition and a motion to re-open
this case, using the same case number that appears on this order. An amended petition
and motion to re-open this case must be filed within ninety (90) days of exhausting state
remedies.
s/ Nancy G. Edmunds
UNITED STATES DISTRICT JUDGE
Dated:August 14, 2014

2

Petitioner’s conviction became final on December 23, 2012, when the ninetyday period of time for seeking review in the United States Supreme Court expired. 28
U.S.C. § 2244(d)(1)(A); Gonzalez v. Thaler, __ U.S. __, __, 132 S. Ct. 641, 653-54
(2012); Sup. Ct. R. 13.1. The one-year statute of limitations began to run on the
following day, Bronaugh v. Ohio, 235 F.3d 280, 284-85 (6th Cir. 2000), and it ran almost
a year (345 days) before Petitioner filed his state post-conviction motion for relief from
judgment, which in all likelihood tolled the limitations period. 28 U.S.C. 2244(d)(2). If
the motion and subsequent application for leave to appeal were “properly filed,” the
limitations period will be tolled until the application for state collateral review “has
achieved final resolution through the State’s post-conviction procedures.” Carey v.
Saffold, 536 U.S. 214, 220 (2002).
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