Thomas v. Stoddard
Filing
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OPINION and ORDER re 7 MOTION to Stay re 1 Petition for Writ of Habeas Corpus and Statistically closing case - Signed by District Judge Laurie J. Michelson. (JJoh)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
AARON THOMAS,
Petitioner,
Case No. 14-cv-13232
Honorable Laurie J. Michelson
v.
CATHERINE STODDARD,
Respondent.
OPINION AND ORDER GRANTING MOTION TO STAY [7]
In 2012, a state jury convicted Petitioner Aaron Thomas of three firearm offenses,
including felon in possession of a firearm. The Michigan Court of Appeals affirmed Thomas’
conviction and sentence, see generally People v. Thomas, No. 309420, 2013 WL 3107484
(Mich. Ct. App. June 20, 2013), and the Michigan Supreme Court denied Thomas leave to appeal
further, People v. Thomas, 840 N.W.2d 323 (Mich. Dec. 23, 2013).
In August 2014, Thomas filed a petition here, asking this Court to grant him a writ of
habeas corpus for two reasons: (1) the evidence adduced at trial was insufficient for a jury to
conclude that he was guilty beyond a reasonable doubt in violation of his Fourteenth Amendment
rights and (2) the admission of prior-conviction evidence at trial violated his Sixth and
Fourteenth Amendment rights. (Dkt. 1, Pet. for Habeas at Pg ID 3.) Thomas says these claims
are exhausted, i.e., the state courts have already had an opportunity to rule on them. (Pet. for
Habeas at Pg ID 3.) It would thus appear that these claims, once Respondent Catherine Stoddard
files her response, are ready for this Court’s resolution.
Nonetheless, about a month after he filed his petition, on September 11, 2014, Thomas
asked this Court to stay this case and hold his habeas petition in abeyance. (See generally Dkt. 7,
Mot. to Stay.) Thomas explains that after the Michigan Supreme Court denied leave to appeal his
conviction on the two grounds indicated above, he learned of a possible third grounds for appeal:
a trial-court order that had directed the prosecution to, among other things, provide him with “all
scientific and laboratory reports.” (Dkt. 7, Mot. to Stay ¶¶ 6, 7.) Thomas says that laboratory
reports have the potential to exculpate him by showing that his fingerprints were not found on
the weapon he was convicted of possessing. (See Mot. to Stay ¶ 8.) Thomas further asserts the
transcript of the state-court proceedings will show that the police suppressed this exculpatory
information. (Id.) Thomas explains that in the month before he filed his habeas petition, he filed
motions with the state trial court asking for the transcript and other trial-court documents. (Mot.
to Stay ¶¶ 9–12.) But, as of the filing of his motion to stay, “the trial court judge ha[d] not
entertained” Thomas’ requests. (Mot. to Stay ¶ 13.) Thomas thus asks this Court to hold his
petition, which he asserts contains only exhausted claims, in abeyance while he “returns to state
court to exhaust additional claims.” (Mot. to Stay at 7.)
Thomas says that failing to stay his petition while he exhausts the third claim could result
in the claim being barred by the Antiterrorism and Effective Death Penalty Act’s statute of
limitations. (Mot. to Stay at 3 ¶ 15, at 7.) Under AEDPA, a one-year limitations period applies to
an application for a writ of habeas corpus, with the clock starting from the latest of several dates,
here, apparently, “the date on which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review,” 28 U.S.C. § 2244(d)(1)(A). The
Michigan Supreme Court denied leave on December 23, 2013, meaning that Thomas’ conviction
became “final” under § 2244(d)(1)(A) at the expiration of his ninety days to seek certiorari from
the United States Supreme Court, i.e., on or around March 23, 2014. See, e.g., Johnson v.
Rapelje, 542 F. App’x 453, 454 (6th Cir. 2013). Although March 23, 2014 was still about six
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months away when Thomas filed his motion to stay, he apparently believed that if he dismissed
his petition, filed a motion based on his suppressed-evidence claim in state court, and then refiled
a habeas petition including that now-exhausted claim (assuming the state court did not grant
relief), he would be time-barred by AEDPA’s statute of limitations. (See Mot. to Stay at 15.) But
with proper diligence, it is hard to say that three months to file a state-court motion and three
months to refile a perfected habeas petition is not sufficient. See 28 U.S.C. § 2244(d)(2) (“The
time during which a properly filed application for State post-conviction or other collateral review
with respect to the pertinent judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.”). In any event, dismissal at this point, with less than a month
remaining on the limitations period, would pose a great challenge for Thomas to make the trip to
state court and back—even with the tolling provided by § 2244(d)(2).
In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court addressed a similar—but
not identical—situation. There, Charles Rhines had filed a “mixed” petition for habeas corpus: it
contained both claims that he had given the state courts a full opportunity to adjudicate and those
he had not. Id. at 272–73. The district court opted to stay the mixed petition so Rhines could
exhaust the petition’s unexhausted claims in state court, but the Eighth Circuit Court of Appeals
thought this procedure problematic given that, under Rose v. Lundy, 455 U.S. 509, 522 (1982), a
district court was required to dismiss a habeas petition containing both unexhausted and
exhausted claims. See Rhines, 544 U.S. at 273. Although not disagreeing with the appellate
court’s reading of Rose, the Supreme Court noted, “[w]hen we decided [Rose v.] Lundy, there
was no statute of limitations on the filing of federal habeas corpus petitions. As a result,
petitioners who returned to state court to exhaust their previously unexhausted claims could
come back to federal court to present their perfected petitions with relative ease.” Rhines, 544
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U.S. at 274. Post-AEDPA, the Supreme Court explained, “If a petitioner files a timely but mixed
petition in federal district court, and the district court dismisses it under Lundy after the
limitations period has expired, this will likely mean the termination of any federal review. . . .
Similarly, if a district court dismisses a mixed petition close to the end of the 1-year period, the
petitioner’s chances of exhausting his claims in state court and refiling his petition in federal
court before the limitations period runs are slim.” Id. at 275.
“[R]ecogniz[ing] the gravity of this problem,” the Court turned to the “stay-andabeyance” solution employed by the district court and considered the competing interests at
stake. Id. at 275–76. On the one hand, district courts have discretion to manage their dockets,
including by issuing stays, and “AEDPA [did] not deprive district courts of that authority,” id. at
276. And, as just discussed, in some situations, dismissal rather than stay would foreclose habeas
review to a prisoner. See id. at 278. On the other hand, in enacting AEDPA, Congress expressed
its interest in finality and in encouraging state prisoners to seek relief from state courts before
their federal counterparts. Id. at 276. “Stay and abeyance, if employed too frequently, ha[d] the
potential to undermine these twin purposes.” Id. at 277. Thus, the Court in Rhines concluded that
“stay and abeyance should be available only in limited circumstances. Because granting a stay
effectively excuses a petitioner’s failure to present his claims first to the state courts, stay and
abeyance is only appropriate when the district court determines there was good cause for the
petitioner’s failure to exhaust his claims first in state court.” Id. at 277. Additionally, “even if a
petitioner had good cause for that failure, the district court would abuse its discretion if it were to
grant him a stay when his unexhausted claims are plainly meritless.” Id. And the Court in Rhines
added, “if a petitioner engages in abusive litigation tactics or intentional delay, the district court
should not grant him a stay at all.” Id. at 278. Notably, if a district court issues a stay under
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Rhines, it stays a mixed petition and, thus, effectively treats unexhausted claims as timely filed.
King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009) (“When implemented, the Rhines exception
eliminates entirely any limitations issue with regard to the originally unexhausted claims, as the
claims remain pending in federal court throughout.”); see also Pace v. DiGuglielmo, 544 U.S.
408, 416 (2005) (providing that where prisoner had a pending motion for state post-conviction
relief, but had good reason to doubt whether he had “properly filed” the motion so as to invoke
AEDPA’s state-post-conviction-relief tolling under 28 U.S.C. § 2244(d)(2), prisoner might file a
“protective” application for habeas to stop the statute-of-limitations clock on the still
unexhausted claims).
Because less than a month of AEDPA’s one-year limitations period remains, the statute
of limitations problem that confronts Thomas appears similar to the hypothetical proposed in
Rhines: should the Court now dismiss his habeas petition, he would have difficulty timely
refiling it after pursuing any unexhausted claims in state court. See Rhines, 544 U.S. at 275
(noting that if court dismissed habeas petition “close to the end of the 1-year period, the
petitioner’s chances of exhausting his claims in state court and refiling his petition in federal
court before the limitations period [ran would be] slim.”).
But there is an important difference: dismissal is not an option for the Court. Thomas’
habeas petition, at least as far as the Court can tell, is not mixed like Rhines’ was. A federal
district court confronted with a mixed petition has these two options: dismiss the petition (Rose’s
rule) or, if certain criteria are met, stay the petition (Rhines’ exception). See King, 564 F.3d at
1140 (“Rhines carved out an exception to Rose’s total exhaustion rule, allowing a mixed petition
to remain pending in federal court under limited circumstances.”). The options before this Court
are different: proceed to adjudicate the two exhausted claims in Thomas’ petition while Thomas
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contemporaneously returns to state court on other claims, or stay this case while Thomas does so.
See Nowaczyk v. Warden, New Hampshire State Prison, 299 F.3d 69, 80 (1st Cir. 2002) (“The
situation here is critically different [from our precedents involving mixed petitions]. Nowaczyk’s
petition contained only exhausted claims. Nothing prevented the district court from adjudicating
those claims immediately[.]”). Thus, the question for this Court is whether to proceed in parallel
(on the exhausted claims) with state-court post-conviction proceedings (on the unexhausted
claim) or to hold off until those state proceedings conclude. These were not the options
confronting the district court in Rhines.
Obviously, had Thomas sought to amend his habeas petition to add the suppressedevidence claim, and if the Court were to have granted that request, his petition would become
mixed, and then Rhines might be directly applicable. But this procedure presents its own
difficulties. It is well settled that the standard to permit amendment of a habeas petition is that set
forth by Federal Rule of Civil Procedure 15. See 28 U.S.C. § 2242 (providing that an application
for habeas “may be amended or supplemented as provided in the rules of procedure applicable to
civil actions); Mayle v. Felix, 545 U.S. 644, 655 (2005) (providing that Rule 15 is “made
applicable to habeas proceedings by § 2242, Federal Rule of Civil Procedure 81(a)(2), and
Habeas Corpus Rule 11”). And it is well settled that leave under Rule 15 should not be granted
where the claim to be added is futile. Foman v. Davis, 371 U.S. 178, 182 (1962). And our Court
of Appeals says that a claim is futile if it cannot “withstand a Rule 12(b)(6) motion to dismiss.”
Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). This in turn invokes
the plausibility standard of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). See e.g., In re B & P Baird Holdings, Inc., No. 14-1060, 2015 WL
24922, at *4 (6th Cir. Jan. 2, 2015). And even if Twombly and Iqbal’s standards do not apply to
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amendments of a habeas petition, the Supreme Court has said that the pleading standard for a
habeas petition is greater than that demanded by Rule 8. See Mayle, 545 U.S. at 655; Advisory
Committee Note on Habeas Corpus Rule 4 (“‘[N]otice’ pleading is not sufficient, for the petition
is expected to state facts that point to a real possibility of constitutional error.” (internal quotation
marks omitted)). These standards governing amendment of a habeas petition, coupled with the
rule of comity and the aims of AEDPA, counsel against deciding whether Thomas’ suppressedevidence claim is futile before the state courts pass upon that claim. If the Court were to do so, it
might affect the state court’s view of the claim. Cf. Rose, 455 U.S. at 518 (“Because it would be
unseemly in our dual system of government for a federal district court to upset a state court
conviction without an opportunity to the state courts to correct a constitutional violation, federal
courts apply the doctrine of comity, which teaches that one court should defer action on causes
properly within its jurisdiction until the courts of another sovereignty with concurrent powers,
and already cognizant of the litigation, have had an opportunity to pass upon the matter.”
(internal quotation marks omitted)). Additionally, by allowing the state court to address the claim
in the first instance, this Court will benefit from a crystalized assertion of the claim, thereby
easing the futility assessment.
As Thomas has not sought to amend his petition (and the Court would be unlikely to
engage in that analysis even if he had), the Court will consider factors similar to those set out in
Rhines, but the Court’s discretion will be guided by different considerations from those in
Rhines. As in Rhines, the Court still considers the merit of the unexhausted claims. But the
primary reasons it does so differs from those discussed in Rhines. For instance, the Court
considers the consequences to the habeas petitioner if it were to proceed to adjudicate the
petition and find that relief is not warranted before the state courts ruled on unexhausted claims.
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In that scenario, should the petitioner subsequently seek habeas relief on the claims the state
courts rejected, he would have to clear the high hurdle of filing a second habeas petition. See 28
U.S.C § 2244(b)(2); McLeod v. Peguese, 337 F. App’x 316, 324 (4th Cir. 2009) (“Respect for
the finality of criminal judgments provides the impetus for the heavy burden placed on
successive § 2254 petitioners by § 2244(b)(2)(b)(ii).”). The risk, then, is that Petitioner might
have to meet a higher standard in order to present the court with potentially meritorious claims
that he did not include in the original petition.
Also relating to the merit of the unexhausted claims is the efficient use of judicial
resources. If this Court were to proceed in parallel with state post-conviction proceedings, there
is a risk of wasting judicial resources if the state court might grant relief on the unexhausted
claim. See Nowaczyk, 299 F.3d at 78 (“Considerations of judicial economy support the district
court’s decision to withhold decision on [habeas] claims that could have been mooted by the
pending state proceedings.”); cf. Colorado River Water Conservation Dist. v. United States, 424
U.S. 800, 817 (1976) (“[T]here are principles unrelated to considerations of proper constitutional
adjudication and regard for federal-state relations which govern in situations involving the
contemporaneous exercise of concurrent jurisdictions, either by federal courts or by state and
federal courts. These principles rest on considerations of wise judicial administration, giving
regard to conservation of judicial resources and comprehensive disposition of litigation.”
(internal quotation marks omitted)). The flip side is also relevant: if the exhausted claims in the
petition appear to be very clear bases for habeas relief, proceeding to adjudicate those claims
would likely save state-court resources. In deciding whether to proceed or stay, the Court also
considers that its adjudication of Thomas’ exhausted claims might impact the state courts’
adjudication of his unexhausted claims if the claims overlap factually or legally.
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Accordingly, where, as here, a habeas petition contains only exhausted claims, and the
petitioner seeks to stay the petition so that he can return to state court on unexhausted claims not
yet part of the petition, the Court believes that its discretion to stay the petition is informed both
by the potential for parallel federal habeas and state post-conviction proceedings and Rhines.
Chief among these considerations is the apparent merit of the unexhausted and exhausted claims,
and, relatedly, whether this Court would benefit from a state-court ruling on the unexhausted
claims. Cf. Rhines, 544 U.S. at 277–78 (directing federal habeas courts to consider whether
unexhausted claims in a mixed habeas petition are “plainly meritless”). But Rhines’ “good
cause” requirement is not irrelevant: the Court is less likely to find parallel-litigation unfairly
prejudicial to a habeas petitioner if the petitioner lacks a good reason for having created that
potential in the first place.
Here, the relevant considerations weigh in favor of a stay. The Court is not now in a
position to determine whether, as Thomas claims, the police suppressed exculpatory laboratory
reports. So the Court cannot say that his unexhausted claim is plainly meritless. On the flip side,
a casual review of Thomas’ petition does not reveal a claim that plainly warrants habeas relief.1
Further, should the state court deny post-conviction relief (such that Thomas’ habeas petition
does not become moot), the Court will still benefit from the state courts’ adjudication of this
claim in determining whether to permit Thomas to amend his petition to add the claim. And the
Court foresees no prejudice to Respondent in staying this case—indeed, Stoddard has not
opposed Thomas’ motion to stay despite ample opportunity to do so. On the other hand, Thomas
could be prejudiced by having to simultaneously fight two proceedings in separate courts and, as
noted, if this Court were to rule before the state courts, Thomas would have the heavy burden of
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It appears that the portion of Thomas’ brief corresponding to his habeas claim based on
the introduction of prior convictions was not submitted to the Court.
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satisfying 28 U.S.C. § 2244(b)(2)’s second-or-successive-petition requirements should he
ultimately seek habeas relief on his suppressed-evidence claim. Finally, the Court finds that
Thomas has demonstrated “good cause” for the failure to exhaust state remedies: he says he did
not know about the trial-court order directing the production of laboratory reports until after the
Michigan Supreme Court denied leave.
Accordingly, the Court hereby GRANTS Thomas’ motion to stay and hold his habeas
petition in abeyance. (Dkt. 7.) Thomas must file a motion for relief from judgment in state court
within 60 days of entry of this order and then immediately file a notice with this Court that
includes proof of the state-court filing and a copy of the filing itself. If he fails to timely notify
the Court that he has sought state-court post-conviction relief, the Court will proceed to
adjudicate the petition as it stands. Within 60 days after the conclusion of the state-court postconviction proceedings, Thomas may move to amend his habeas petition to add the suppressedevidence claim. Otherwise, Thomas must inform the Court that he will proceed with the petition
as is. Because Thomas filed his motion to stay five months ago, the Court will equitably toll
AEDPA’s statute of limitations during each of the 60-day periods, thereby placing Thomas in the
position he would have been in had the Court ruled on the motion soon after it was filed. See
Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010) (“The doctrine of equitable tolling
allows courts to toll a statute of limitations when a litigant’s failure to meet a legally-mandated
deadline unavoidably arose from circumstances beyond that litigant’s control.” (internal
quotation marks omitted)).2 To avoid administrative difficulties, the Court orders the Clerk of
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The Court recognizes that equitable tolling should be “used sparingly” to pause
AEDPA’s clock. Simpson, 624 F.3d at 784. But equitable tolling is not part of the general
procedure outlined in this opinion—the Court applies it here only due to the delay in resolving
Thomas’ motion, delay not attributable to Thomas’ conduct. Had the Court ruled earlier,
equitable tolling would not have been necessary given that Thomas would still have had many
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Court to close this case for statistical purposes only. Nothing in this order shall be considered a
disposition of Thomas’ petition.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: March 5, 2015
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the
attorneys and/or parties of record by electronic means or U.S. Mail on March 5, 2015.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson
months left on the one-year clock and he is entitled to statutory tolling during post-conviction
proceedings. See 28 U.S.C. § 2244(d)(2); Cowherd v. Million, 380 F.3d 909, 913–14 (6th Cir.
2004) (en banc) (holding that, under §2244(d)(2), a state post-conviction motion tolled AEDPA’s
statute of limitations so long as the motion challenged the state-court “judgment” and, therefore,
tolling applied even if the state post-conviction motion did not raise federal claim). On the other
hand, nothing prevented Thomas from filing for post-conviction relief pending this Court’s
disposition of his motion to stay, which would have likely obviated the need for any equitable
tolling. In the future, petitioners facing Thomas’ situation would be prudent to elect that route.
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