Boswell v. Gidley

Filing 4

ORDER GRANTING PETITIONERS MOTION TO HOLD HIS HABEAS PETITION IN ABEYANCE AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES 2 . Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TYRONE W. BOSWELL,
Petitioner,
v.

CASE NO. 14-12705
HONORABLE GERSHWIN A. DRAIN

LORI GIDLEY,
Respondent.
_____________________________/
ORDER GRANTING PETITIONER’S MOTION TO HOLD HIS HABEAS PETITION
IN ABEYANCE AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES
I. Introduction
Petitioner Tyrone W. Boswell recently filed a pro se habeas corpus petition under
28 U.S.C. § 2254 and a motion to hold his habeas petition in abeyance. The petition
challenges Petitioner’s Wayne County conviction and life sentence for first-degree
(felony) murder, Mich. Comp. Laws § 750.316(1)(b). On appeal from his conviction,
Petitioner argued that (1) the prosecution failed to introduce legally sufficient evidence,
(2) the trial court’s verdict was against the great weight of the evidence, and (3) defense
counsel was ineffective for failing to call certain witnesses, among other things. The
Michigan Court of Appeals affirmed Petitioner’s conviction in an unpublished, per curiam
opinion. See People v. Boswell, No. 307342 (Mich. Ct. App. July 23, 2013). Petitioner
claims that he sent a timely application for leave to appeal to the Michigan Supreme
Court, but that the court did not receive his application.

On June 30, 2014, Petitioner submitted his habeas corpus petition to prison
officials for mailing to this Court. His grounds for relief are (1) the prosecution failed to
introduce legally sufficient evidence and (2) defense counsel was ineffective for failing
to call certain witnesses.
In his motion to hold the habeas petition in abeyance, Petitioner alleges that he
filed a motion for relief from judgment in the state trial court simultaneously with his
habeas petition. His post-conviction motion in state court raises the following new
claims, which Petitioner would like to add to his habeas petition: (1) the prosecution
elicited fabricated testimony from the officer in charge; (2) the trial judge was biased;
and (3) appellate counsel was ineffective. Petitioner would like the Court to stay this
case and to hold his habeas petition in abeyance while he exhausts state remedies for
these new claims.
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); 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 to the state supreme court. Wagner v. Smith, 581 F.3d 410, 414 (6th Cir.
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2009).
Petitioner currently is pursuing state remedies for three unexhausted claims that
he wishes to raise in his habeas petition. If the Court were to dismiss the petition while
Petitioner pursues additional state remedies, the Court could be precluded from
considering a second or subsequent habeas petition due to the expiration of the oneyear statute of limitations. See 28 U.S.C. § 2244(d). Under the “stay-and-abeyance”
approach adopted 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 his state remedies, the district court
can lift its stay and allow the inmate to proceed in federal court. Id. at 275-76.
Federal district courts have authority to issue stays, id. at 276, and it likely would
be an abuse of discretion not to stay a case when the petitioner has good cause for his
failure to exhaust state remedies, his unexhausted claims are potentially meritorious,
and he is not engaged in intentionally dilatory litigation tactics. Id. 278. The petitioner’s
interest in obtaining federal review of his claims in those circumstances “outweighs the
competing interests in finality and speedy resolution of federal petitions.” Id.
Petitioner’s proposed new claims are potentially meritorious, and he is not
engaged in intentionally dilatory litigation tactics. Furthermore, he alleges that appellate
counsel was ineffective for failing to raise his unexhausted claims on direct appeal.
Under the circumstances, it would be an abuse of discretion not to stay these
proceedings while Petitioner pursues additional state remedies.
Accordingly,
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IT IS ORDERED that Petitioner’s motion to hold his habeas corpus petition in
abeyance (Doc. No. 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 current claims or a ruling on whether the current claims are exhausted or
procedurally defaulted.
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 reopen 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/Gershwin A Drain_____________
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: August 13, 2014

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