Lewis v. MacLaren

Filing 7

ORDER DENYING PETITIONERS MOTION TO HOLD HABEAS PETITION IN ABEYANCE 3 . Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMAL JAY LEWIS, #345442,
Petitioner,
CASE NO. 2:15-CV-10880
HONORABLE GERSHWIN A. DRAIN

v.
DUNCAN MACLAREN,
Respondent.
_________________________________/

ORDER DENYING PETITIONER’S MOTION
TO HOLD HABEAS PETITION IN ABEYANCE
I.
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner
Jamal Jay Lewis (“Petitioner”) was convicted of possession of burglar's tools, MICH. COMP.
LAWS § 750.116; two counts of breaking and entering of a motor vehicle with damage to
the vehicle, MICH. COMP. LAWS § 750.356a(3); breaking and entering of a motor vehicle with
intent to steal property worth less than $200, MICH. COMP. LAWS § 750.356a(2)(a); three
counts of larceny from a motor vehicle, MICH. COMP. LAWS § 750.356a(1); three counts of
attempt to unlawfully drive away a motor vehicle, MICH. COMP. LAWS § 750.413; MICH.
COMP. LAWS § 750.92; and two counts of receiving and concealing stolen property with a
value greater than $200 and less than $1,000, MICH. COMP. LAWS § 750.535(4)(a). He was
sentenced, as a fourth habitual offender, MICH. COMP. LAWS § 769.12, to 4½ to 20 years
imprisonment for the possession of burglar's tools conviction, two to five years
imprisonment for each of the breaking and entering a motor vehicle with damage to the

vehicle convictions, three months in jail for the breaking and entering of a motor vehicle
with intent to steal property worth less than $200 conviction, two to five years imprisonment
for each of the larceny from a motor vehicle convictions, two to five years imprisonment for
each of the attempt to unlawfully drive away a motor vehicle convictions, and one year in
jail for each of the receiving and concealing stolen property with a value greater than $200
and less than $1,000 convictions.
In his current pleadings, Petitioner raises claims concerning the search and seizure
of evidence, the addition of charges mid-trial, the effectiveness of trial counsel, his trial
clothing, and the lack of an evidentiary hearing on direct appeal. The matter is before the
Court on Petitioner’s motion to hold his habeas petition in abeyance and stay the
proceedings so that he may return to the state courts and exhaust additional issues
concerning the sufficiency of the evidence and the effectiveness of trial and appellate
counsel. For the reasons stated, the Court denies Petitioner’s motion.
II.
Following his convictions and sentencing, Petitioner filed an appeal of right with the
Michigan Court of Appeals raising the same claims contained in his current petition. The
Michigan Court of Appeals affirmed his convictions. People v. Lewis, No. 311813, 2014
WL 61310 (Mich. Ct. App. Jan. 7, 2014) (unpublished). Petitioner then filed an application
for leave to appeal with the Michigan Supreme Court, which was denied. People v. Lewis,
496 Mich. 865, 849 N.W.2d 359 (July 29, 2014). Petitioner dated his federal habeas
petition, and the instant motion, on February 26, 2015.

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III.
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254 must
first exhaust all state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
(“state prisoners must give the state courts one full fair opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process”); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

To satisfy this

requirement, the claims must be “fairly presented” to the state courts, meaning that the
prisoner must have asserted both the factual and legal bases for the claims in the state
courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). The claims must also be
presented to the state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d
365, 368 (6th Cir. 1984). A Michigan prisoner must properly present each issue he seeks
to raise in a federal habeas proceeding to both the Michigan Court of Appeals and the
Michigan Supreme Court to satisfy the exhaustion requirement. Welch v. Burke, 49 F.
Supp. 2d 992, 998 (E.D. Mich. 1999); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th
Cir. 1990). While the exhaustion requirement is not jurisdictional, a “strong presumption”
exists that a petitioner must exhaust all available state remedies before seeking federal
habeas review. Granberry v. Greer, 481 U.S. 129, 131, 134-35 (1987). The burden is on
the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
A federal court has discretion to stay a mixed habeas petition, containing both
exhausted and unexhausted claims, to allow a petitioner to present unexhausted claims to
the state courts and then return to federal court on a perfected petition. Rhines v. Weber,
544 U.S. 269, 276 (2005). Stay and abeyance is available only in “limited circumstances”
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such as when the one-year statute of limitations poses a concern, and when the petitioner
demonstrates “good cause” for the failure to exhaust state remedies before proceeding in
federal court, the petitioner has not engaged in intentionally dilatory litigation tactics, and
the unexhausted claims are not “plainly meritless.” Id. at 277.
Petitioner has not shown the need for a stay. His current habeas claims are
exhausted and he has not shown that the one-year statute of limitations applicable to
federal habeas actions, see 28 U.S.C. § 2244(d), poses a concern.

The one-year

limitations period does not begin to run until 90 days after the conclusion of direct appeal,
see Jimenez v. Quarterman, 555 U.S. 113, 120 (2009) (stating that a conviction becomes
final when “the time for filing a certiorari petition expires”); Lawrence v. Florida, 549 U.S.
327, 333 (2007). The Michigan Supreme Court denied leave to appeal on July 29, 2014
and the time for seeking a writ of certiorari with the United States Supreme Court expired
on October 27, 2014. Petitioner dated his federal habeas petition on February 26, 2015.
Thus, only four months of the one-year period had expired when Petitioner instituted this
action. While the time in which this case has been pending in federal court is not statutorily
tolled, see Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (a federal habeas petition is not
an “application for State post-conviction or other collateral review” within the meaning of
28 U.S.C. § 2244(d)(2) so as to statutorily toll the limitations period), such time is equitably
tolled. See, e.g., Johnson v. Warren, 344 F. Supp. 2d 1081, 1088-89 (E.D. Mich. 2004).
The limitations period will also be tolled during the time in which any properly filed postconviction or collateral actions are pending in the state courts. 28 U.S.C. § 2244(d)(2);
Carey v. Saffold, 536 U.S. 214, 219-221 (2002). Given that approximately eight months
of the one-year period remains, Petitioner has sufficient time to exhaust additional issues
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in the state courts and return to federal court should he wish to do so. A stay is
unwarranted.
Moreover, while there is no evidence of intentional delay and Petitioner’s additional
insufficient evidence and ineffective assistance of trial and appellate counsel claims do not
appear to be plainly meritless, Petitioner has not shown cause for his failure to exhaust
those issues in the state courts before proceeding on federal habeas review. Given such
circumstances, a stay is unwarranted.
IV.
Accordingly, the Court DENIES Petitioner’s motion to hold his habeas petition in
abeyance and stay the proceedings. Should Petitioner wish to have the Court dismiss the
present petition so that he may pursue additional issues in the state courts, he may move
for a non-prejudicial dismissal of his habeas petition within 30 DAYS of the filing date of this
order. If he does not do so, the Court shall proceed on the claims contained in the pending
petition.
IT IS SO ORDERED.

/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: March 18, 2015

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