Gerguson v. Gidley

Filing 7

ORDER granting petitioner's motion to hold his habeas petition in abeyance 3 and closing case for administrative purposes. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHAUN FERGUSON,
Petitioner,
CASE NO. 14-14133
HONORABLE GEORGE CARAM STEEH

v.
LORI GIDLEY,
Respondent.
_________________________/

ORDER GRANTING PETITIONER’S MOTION TO
HOLD HIS HABEAS PETITION IN ABEYANCE (Dkt. #3)
AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES
I. Introduction and Background
On October 27, 2014, petitioner Shaun Ferguson filed a pro se habeas corpus
petition and a motion to hold his habeas petition in abeyance. The habeas petition
challenges petitioner’s state convictions for second-degree murder, Mich. Comp. Laws
§ 750.317, felon in possession of a firearm, Mich. Comp. Laws § 750.224f, carrying a
concealed weapon (CCW), Mich. Comp. Laws § 750.227, and possession of a firearm
during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b. The
state trial court sentenced petitioner as a habitual offender to imprisonment for forty-five
to seventy years for the murder conviction, five to fifteen years for the felon-inpossession and CCW convictions, and ten years for the felony firearm conviction.
In an appeal from his convictions, petitioner argued that (1) he was denied an
opportunity to examine the government’s confidential informant who arranged the
purchase of the murder weapon, (2) the prosecutor misstated evidence in her rebuttal
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argument, (3) the prosecutor’s officer-in-charge testified directly on the issue of
petitioner’s guilt, (4) the prosecution withheld evidence that the police tampered with
evidence before trial, and (5) the confrontation clause was violated when the trial court
admitted AT&T records. The Michigan Court of Appeals rejected these claims and
affirmed petitioner’s convictions in an unpublished, per curiam opinion. See People v.
Ferguson, No. 307666 (Mich. Ct. App. Mar. 19, 2013). On October 28, 2013, the
Michigan Supreme Court denied leave to appeal because it was not persuaded to
review the issues. See People v. Ferguson, 495 Mich. 880; 838 N.W.2d 694 (2013).
On October 22, 2014, petitioner signed and dated his habeas petition, and on
October 27, 2014, the Clerk of Court filed the petition. Petitioner is raising the same
issues that he presented to the state courts. In his pending motion for a stay, petitioner
has asked the Court to hold his habeas petition in abeyance so that he can raise
additional issues in the state trial court and then present all his claims to this Court in a
single habeas corpus petition.
II. Analysis
State prisoners must exhaust their available state remedies before filing a
habeas corpus petition in federal court. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel,
526 U.S. 838, 842, 845 (1999). Nevertheless, if the Court were to dismiss Petitioner’s
habeas petition so that he can pursue state remedies for his unexhausted claims, a
subsequent habeas corpus petition likely would be barred by the one-year statute of
limitations. See 28 U.S.C. § 2244(d). “A prisoner seeking state postconviction relief
might avoid this predicament, however, by filing a ‘protective’ petition in federal court
and asking the federal court to stay and abey the federal habeas proceedings until state
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remedies are exhausted.” Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005) (citing
Rhines v. Weber, 544 U.S. 269, 278 (2005)).
Petitioner has filed a “protective” habeas corpus petition, and even though he has
not listed the issues that he seeks to exhaust in state court, nor explained why he did
not exhaust state remedies for all his claims before filing his habeas petition, he is not
“engage[d] in abusive litigation tactics.” Rhines v. Weber, 544 U.S. at 278. The Court
therefore GRANTS petitioner’s motion to hold his habeas petition in abeyance. (Dkt.
#3).
This stay is conditioned on petitioner filing a motion for relief from judgment in the
state trial court within ninety (90) days of the date of this order if he has not already
filed such a motion. The stay is further conditioned on petitioner filing an amended
habeas corpus petition and a motion to re-open this case within ninety (90) days of
exhausting state remedies if he is unsuccessful in state court. An amended petition and
a motion to re-open this case must list the same case number that appears on this
order. Failure to comply with the conditions of this stay could result in the dismissal of
the habeas petition. Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014), petition for
cert. filed, No. 14-7246 (U.S. Nov. 7, 2014).
Finally, the Court ORDERS the Clerk of the Court to close this case for
administrative purposes. Nothing in this order shall be construed as an adjudication on
the merits of petitioner’s claims.
Dated: January 5, 2015
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 5, 2015, by electronic and/or ordinary mail and also
on Shaun Ferguson #472312, Oaks Correctional Facility,
1500 Caberfae Highway, Manistee, MI 49660.
s/Barbara Radke
Deputy Clerk

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