Lavely v. Winn

Filing 8

OPINION and ORDER holding in abeyance 1 Petition for Writ of Habeas Corpus and Administratively Closing the Case. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILLIAM EDWARD LAVELY,
Petitioner,
v.

Case Number 2:15-CV-11245
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

THOMAS WINN,
Respondent.
_________________________/
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT
OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE
William Edward Lavely, (“Petitioner”), confined at the Saginaw Correctional
Facility in Freeland, Michigan, filed a petition for writ of habeas corpus with this Court
pursuant to 28 U.S.C. § 2254, challenging his convictions for two counts of first-degree
criminal sexual conduct, MICH. COMP. LAWS § 750.520(b)(1)(A). Petitioner has filed
a motion hold the petition in abeyance to permit him to return to the state courts to
present additional claims that have not been exhausted with the state courts and that
are not included in his current habeas petition. For the reasons stated below, the Court
holds the petition in abeyance and stays the proceedings under the terms outlined in
this opinion to permit petitioner to return to the state courts to exhaust his additional
claims. The Court will also administratively close the case.
I. Background
Petitioner was convicted following a jury trial in the Clare County Circuit Court.
Petitioner’s conviction was affirmed on appeal. People v. Lavely, No. 312389 (Mich. Ct.
-1-

App. Nov. 12, 2013); lv. den. 495 Mich. 994 (2014).
Petitioner filed a petition for writ of habeas corpus, seeking habeas relief on the
one claim that he raised on his appeal of right before the Michigan Court of Appeals.
Petitioner has filed a motion to hold the petition in abeyance, so he can return to
the state courts to raise additional claims which have not been exhausted with the state
courts.
II. Discussion
A federal district court has authority to abate or dismiss a federal habeas action
pending resolution of state post-conviction proceedings. Brewer v. Johnson, 139 F. 3d
491, 493 (5th Cir. 1998). However, to stay federal proceedings and hold a habeas
petition in abeyance pending resolution of state court proceedings, there must be
exceptional or unusual circumstances. Sitto v. Bock, 207 F. Supp. 2d 668, 676 (E.D.
Mich. 2002); Hudson v. Martin, 68 F. Supp. 2d 798, 800 (E.D. Mich. 1999). A federal
district court is authorized to stay fully exhausted federal habeas petitions pending the
exhaustion of other claims in the state courts. See Nowaczyk v. Warden, New
Hampshire State Prison, 299 F.3d 69, 77-79 (1st Cir. 2002)(holding that district courts
should “take seriously any request for a stay.”); Anthony v. Cambra, 236 F. 3d 568, 575
(9th Cir. 2000); See also Bowling v. Haeberline, 246 Fed. Appx. 303, 306 (6th Cir.
2007)(a habeas court is entitled to delay a decision in a habeas petition that contains
only exhausted claims “when considerations of comity and judicial economy would be
served”)(quoting Nowaczyk, 299 F. 3d at 83). Indeed, although there is no bright-line
rule that a district court can never dismiss a fully-exhausted habeas petition because of
the pendency of unexhausted claims in state court, in order for a federal court to justify
-2-

departing from the “heavy obligation to exercise jurisdiction,” there must be some
compelling reason to prefer a dismissal over a stay. Nowaczyk, 299 F. 3d at 82 (internal
quotation omitted); see also Bowling, 246 Fed. Appx. at 306 (district court erred in
dismissing petition containing only exhausted claims, as opposed to exercising its
jurisdiction over petition, merely because petitioner had independent proceeding
pending in state court involving other claims).
The Court grants petitioner’s motion to hold the petition in abeyance while he
returns to the state courts to exhaust. The outright dismissal of the petition, albeit
without prejudice, might result in preclusion of consideration of 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, 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 U.S. Supreme Court 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 then 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;
278 (2005)). A federal court may stay a federal habeas petition and hold further
proceedings in abeyance pending resolution of state court post-conviction proceedings,
if there is good cause for failure to exhaust and the unexhausted claims are not “plainly
-3-

meritless.” Rhines, 544 U.S. at 278.
Petitioner’s claims do not appear to be “plainly meritless.” Wagner v. Smith, 581
F.3d 410, 419 (6th Cir. 2009). Further, petitioner asserts that he did not previously raise
these claims in the state courts due to the ineffective assistance of appellate counsel.
Id., at 419, nn. 4 and 5. Finally, 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 278. 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 by filing
a post-conviction motion for relief from judgment with the state trial 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 of exhausting his state court remedies. See id.
Petitioner’s method of properly exhausting his claims in the state courts would be
through filing a motion for relief from judgment with the Clare County Circuit Court under
M.C.R. 6.502. See Wagner, 581 F. 3d at 419. A trial court is authorized to appoint
counsel for petitioner, seek a response from the prosecutor, expand the record, permit
oral argument, and hold an evidentiary hearing. M.C.R. 6.505-6.507, 6.508 (B) and (C).
Denial of a motion for relief from judgment is reviewable by the Michigan Court of
Appeals and the Michigan Supreme Court upon the filing of an application for leave to
appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. Nasr v. Stegall, 978 F. Supp. 714,
-4-

717 (E.D. Mich. 1997). Petitioner, in fact, is required to appeal the denial of his postconviction motion to the Michigan Court of Appeals and the Michigan Supreme Court in
order to properly exhaust the claims that he would raise in his post-conviction motion.
See e.g. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002).
III. ORDER
IT IS HEREBY ORDERED that the proceedings are STAYED and the Court will
hold the habeas petition in abeyance. Petitioner must file a motion for relief from
judgment in state court within sixty days of receipt of this order. He shall notify this
Court in writing that such motion papers have been filed in state court. If he fails to file
a motion or notify the Court that he has done so, the Court will lift the stay and will
reinstate the original petition for writ of habeas corpus to the Court’s active docket and
will proceed to adjudicate only the claim that was raised in the original petition. After
petitioner fully exhausts his new claims, he shall file an amended petition that includes
the new claims within sixty days after the conclusion of his state court post-conviction
proceedings, along with a motion to lift the stay. Failure to do so will result in the Court
lifting the stay and adjudicating the merits of the claim raised in petitioner’s original
habeas petition.
To avoid administrative difficulties, the Court ORDERS the Clerk of Court to
CLOSE this case for statistical purposes only. Nothing in this order or in the related
docket entry shall be considered a dismissal or disposition of this matter. See Sitto, 207
F. Supp. 2d at 677.
It is further ORDERED that upon receipt of a motion to reinstate the habeas

-5-

petition following exhaustion of state remedies, the Court will order the Clerk to reopen
this case for statistical purposes.
Dated: May 5, 2015
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 5, 2015, by electronic and/or ordinary mail and also on
William Lavely #848603, Saginaw Correctional Facility,
9625 Pierce Road, Freeland, MI 48623.
s/Barbara Radke
Deputy Clerk

-6-