Glenn v. McKee
OPINION AND ORDER HOLDING IN ABEYANCE the Petition for Writ of Habeas Corpus and Administratively Closing Case Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
DEVON DECARLOS GLENN,
Case No. 14-CV-12987
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF
HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE
Petitioner Devon Decarlos Glenn, incarcerated at the Chippewa Correctional
Facility in Kincheloe, Michigan, seeks the issuance of a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his plea-based
conviction of armed robbery1 and felonious assault.2 He raises only one claim for relief
in his petition, based on a purported ex post facto violation. In his Motion to Stay Writ of
Habeas Corpus or Hold in Abeyance (Doc. # 15), Petitioner seeks leave to return to
state court to exhaust an additional claim that the trial court judge violated his Sixth
Amendment right to a trial by jury by using factors that had not been submitted to a jury
and proven beyond a reasonable doubt, or admitted to by Petitioner, when scoring
Offense Variable (OV) 7 of the Michigan Sentencing Guidelines. For the reasons stated
below, the court will hold the petition in abeyance and will stay the proceedings to
Mich. Comp. Laws § 750.529.
Mich. Comp. Laws § 750.82.
permit Petitioner to return to the state courts to exhaust his claim. The court will also
administratively close the case.
Petitioner pled guilty to the above offenses in Jackson County Circuit Court and
was sentenced to fifteen to thirty years in prison on the armed robbery conviction and
eighteen months to four years on the felonious assault conviction.
The Michigan Court of Appeals issued an opinion vacating Petitioner’s
sentences, and remanding the case for resentencing after finding that 0 points should
have been assessed for OV 7 under the Michigan Sentencing Guidelines. People v.
Glenn, 814 N.W.2d 686, 688 (Mich. Ct. App. 2012).
The Jackson Country prosecutor filed an application for leave to appeal with the
Michigan Supreme Court which was granted specifically to address “whether the trial
court erroneously assessed 50 points for offense variable 7 (OV 7), MCL 777.37(1)(a),
for committing assaultive acts beyond those necessary to commit the offense.” People
v. Glenn, 814 N.W.2d 294 (2012)(Mem).
The Michigan Supreme Court reversed the appellate court’s decision, finding that
OV 7 had been correctly scored at 50 points and remanded the case to the trial court for
reinstatement of Petitioner’s original sentence. People v. Glenn, 835 N.W.2d 340 (Mich.
In addition to the ex post facto/due process claim raised in Petitioner’s habeas
brief, Petitioner in his reply brief and motion to hold his habeas petition in abeyance
raises a claim that the judge violated his Sixth Amendment right to a jury trial by using
facts that had not been proven beyond a reasonable doubt or admitted to by Petitioner
to assess 50 points under OV 7 of the Michigan Sentencing Guidelines. Petitioner did
not raise this claim before the Michigan courts. In lieu of dismissing the petition without
prejudice, the court will hold the instant petition in abeyance to permit Petitioner to
return to the state courts to exhaust his second claim.
As a general rule, a state prisoner seeking federal habeas relief must first
exhaust his or her available state court remedies before raising a claim in federal court.
28 U.S.C. § 2254(b) and(c); Picard v. Connor, 404 U. S. 270, 275-78 (1971); Hannah v.
Conley, 49 F. 3d 1193, 1195 (6th Cir. 1995). 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. Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D.
Mich. 1999). Federal district courts must dismiss mixed habeas petitions which contain
both exhausted and unexhausted claims. Pliler v. Ford, 542 U.S. 225, 230 (2004)(citing
Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)).
Petitioner’s new claim is unexhausted because Petitioner never raised this claim
on his direct appeal. The instant petition is subject to dismissal. 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
these issues in the state courts. In this case, the outright dismissal of the petition, albeit
without prejudice, might result in preclusion of consideration of the Petitioner’s claims in
this court due to the expiration of the one year statute of limitations contained in the
Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d)(1). A
common circumstance calling for abating a habeas petition arises when the original
petition was timely filed, as was the case here, but a second, exhausted habeas petition
would be time barred by the AEDPA’s statute of limitations. See Hargrove v. Brigano,
300 F. 3d 717, 720-21 (6th Cir. 2002). The United States Supreme Court, in fact, 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 and 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)). Thus, a federal court may
stay a federal habeas petition and hold further proceedings in abeyance pending
resolution of state court post-conviction proceedings, 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.
Petitioner’s claim does not appear to be “plainly meritless.” Wagner v. Smith, 581
F. 3d 410, 419 (6th Cir. 2009). Nor it does not appear that Petitioner has engaged in
“intentionally dilatory tactics.”
When 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 1535. To ensure that
Petitioner does not delay in exhausting his state court remedies, the court imposes
upon Petitioner time limits within which he must proceed. See Palmer v. Carlton, 276
F.3d 777, 781 (6th Cir. 2002). Petitioner must present his claims in state court within
sixty days from the date of this Order. See id. Further, he must ask this court to lift the
stay within sixty days after exhausting his state court remedies. See id. “If the
conditions of the stay are not met, the stay may later be vacated nunc pro tunc as of the
date the stay was entered, and the petition may be dismissed.” Palmer, 276 F. 3d at
781 (internal quotation omitted).
IT IS ORDERED that the habeas petition is STAYED and further proceedings in
this matter are held in ABEYANCE. Petitioner must present his claims to the state court
with sixty days of the date of this Order. Additionally, Petitioner must file a motion to lift
the stay and an amended petition in this court within sixty days after the conclusion of
the state court proceedings.
IT IS FURTHER ORDERED that, to avoid administrative difficulties, the Clerk of
Court close this case for statistical purposes only. Nothing in this order or in the related
docket entry shall be considered a dismissal of this matter. Upon receipt of a motion to
lift the stay following exhaustion of state remedies, the court may order the Clerk to
reopen this case for statistical purposes.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: September 27, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, September 27, 2016, by electronic and/or ordinary mail.
Case Manager and Deputy Clerk
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