Winstanley v. Stewart

Filing 15

OPINION and ORDER Granting 14 MOTION to Stay re 1 Petition for Writ of Habeas Corpus - Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TASHIA WINSTANLEY,
Petitioner,

Case No. 15-cv-11475
Honorable Laurie J. Michelson

v.
ANTHONY STEWART,
Respondent.
OPINION AND ORDER GRANTING PETITIONER’S AMENDED MOTION FOR
STAY AND ABEYANCE [14]
Petitioner Tashia Winstanley, a Michigan prisoner, filed a petition for habeas corpus
pursuant to 28 U.S.C. § 2254. (Dkt. 1, Pet.) Winstanley challenges her state-court convictions,
including for conducting a criminal enterprise (Michigan Compiled Laws § 750.15911).
On June 22, 2015, Winstanley filed a Motion to Stay the Proceedings and Hold the
Petition in Abeyance. (Dkt. 8, Mot. to Stay.) She refiled this motion on October 16, 2015. (Dkt.
9.) She wishes to return to state court to exhaust additional claims. The Court denied these
motions without prejudice, finding that Winstanley had not supplied enough information for the
Court to properly evaluate her request. (Dkt. 10.) Winstanley filed an amended motion on
November 5, 2015. (Dkt. 14.) For the reasons that follow, the Court will grant the stay and hold
the case in abeyance.
I. BACKGROUND
Winstanley was convicted following her guilty plea in the Grand Traverse Circuit Court.
Her conviction was affirmed on appeal. People v. Winstanley, No. 315260 (Mich. Ct. App. Nov.
27, 2013); lv. den. 845 N.W.2d 502 (Mich. S. Ct. 2014). The Michigan Supreme Court denied

leave to appeal on April 28, 2014. Id. On April 23, 2015, Winstanley filed her habeas petition. In
the Petition, she seeks relief on the same claims that she raised and exhausted in the Michigan
state courts. (Pet. at 5). Winstanley now seeks to hold her Petition in abeyance while she returns
to state court to exhaust additional claims of ineffective assistance of counsel at both the trial and
appellate levels, and to “relitigate an issue based upon a new case law . . . .” (Dkt. 14, Mot. To
Stay at 2.) Respondent has not filed a response to the Motion to Stay.
Specifically, Winstanley seeks to challenge the amount of restitution imposed based on
People v. McKinley, 852 N.W.2d 770 (Mich. S. Ct. 2014). She says that despite the fact that she
was “indicted for five victims, but only convicted of three victims,” her sentencing judge
“assessed points and restitution to over sixty victims.” (Id.) Winstanley says this was illegal
under McKinley, and that her appellate counsel’s failure to raise the issue was ineffective
assistance of counsel. (Id.) Additionally, Winstanley seeks to raise a claim pursuant to People v.
Lockridge, 870 N.W.2d 502 (Mich. S. Ct. 2015). She states that several OV sentencing variables
were improperly scored, including those related to the victims of her crime. While her appellate
counsel did raise this claim of error, Winstanley states that “the Court of Appeals denied this
issue [without] any reason.” (Id. at 3.)
II. DISCUSSION
A federal district court has authority to abate or dismiss a federal habeas action pending
resolution of state post-conviction proceedings. See Brewer v. Johnson, 139 F. 3d 491, 493 (5th
Cir. 1998). This is so even with respect to a fully exhausted federal habeas petition. See Bowling
v. Haeberline, 246 F. App’x 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

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and judicial economy would be served”) (quoting Nowaczyk v. Warden, New Hampshire State
Prison, 299 F. 3d 69, 83 (1st Cir. 2002)).
In many instances though, the outright dismissal of a habeas petition to allow a petitioner
to exhaust state remedies might result in a time-bar when the petitioner returns to federal court
due to the one-year statute of limitations contained in the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). 28 U.S.C. 2244(d)(1); see also Hargrove v. Brigano, 300 F.3d 717,
720-21 (6th Cir. 2002). In this case, AEDPA’s one-year statute of limitations does pose a
concern, as the Michigan Supreme Court denied Winstanley’s application for leave to appeal on
April 28, 2014 and she filed her Petition on April 23, 2015, leaving her a little over three months
on the one-year clock at the time she filed this case. See Ali v. Tennessee Bd. of Pardon &
Paroles, 431 F.3d 896, 899 (6th Cir. 2005) (stating that the additional ninety days in which a
petitioner could have filed a petition for certiorari in the United States Supreme Court delays the
state of the limitations period (citing Abela v. Martin, 348 F.3d 164 (6th Cir. 2003) (en banc))).
Further, there is no statutory tolling while a habeas petition is pending before a federal court.
Duncan v. Walker, 533 U.S. 167, 173 (2001). And equitable tolling is available in only limited
circumstances. See Griffin v. Rogers, 308 F.3d 647, 653 (6th Cir. 2002).
The Supreme Court has addressed the procedure by which a district court may stay a
“mixed” petition (one that consists of both exhausted and unexhausted claims). See Rhines v.
Weber, 544 U.S. 269, (2005) (“[S]tay and abeyance is only appropriate when the district court
determines there was good cause for the petitioner’s failure to exhaust his claims . . . 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 claims are plainly meritless . . . . [and] if a petitioner engages in
abusive litigation tactics or intentional delay, the district court should not grant him a stay at

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all.”). But Rhines is not directly applicable to Winstanley’s situation, for her current Petition
contains only exhausted claims.
In evaluating a similar motion, this Court recently concluded that where, as here, a
habeas petition contains only exhausted claims, and the petitioner seeks to stay the petition so
that she 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.
Additionally, 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. Thomas v. Stoddard, 89 F. Supp. 3d 937, 943
(E.D. Mich. 2015).
The Court finds that Winstanley’s proposed Lockridge claim is a proper basis for a stay.1
In Lockridge, 870 N.W.2d at 511, the Michigan Supreme Court held, “to the extent that [offense
variables] scored on the basis of facts not admitted by the defendant or necessarily found by the
jury verdict increase the floor of the guidelines range, i.e, the defendant’s ‘mandatory minimum’
sentence, that procedure violates the Sixth Amendment.” Winstanley, citing Lockridge, wishes to
assert the following claim in a state-court motion for relief from judgment: “Petitioner’s OV 9,
OV 10, and OV 14 were improperly scored at Petitioner’s sentencing which created a higher
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A review of the Lockridge claim suffices for purposes of a Thomas analysis. But the
Court notes that Winstanley’s claim regarding restitution may not be a proper basis for federal
habeas relief. See Washington v. McQuiggin, 529 F. App’x 766, 772–73 (6th Cir. 2013) (“In
general, fines or restitution orders fall outside the scope of the federal habeas statute because
they do not satisfy the ‘in custody’ requirement of a cognizable habeas claim.” (citation and
internal quotation marks omitted)).
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sentence than should have been.” (Am. Mot. to Stay at 3.) It appears that Petitioner raised the
same or an overlapping claim in her Petition, in which she asserts that the sentencing judge
“erred in the scoring of certain variables.” (Pet. at 5A–5G.) However, at the time Winstanley
filed her direct appeal in state court, as well as the time she filed her Petition in this Court,
Lockridge had not yet been decided. As a result, when Winstanley’s counsel raised the issue, the
Michigan Court of Appeals “denied [it] without any reason.” (Mot. to Stay at 3.)
Given Lockridge (and the fact that Respondent’s brief, filed in October 2015, fails to cite
the decision), the Court cannot say that Winstanley’s proposed claim is “plainly meritless.” And
Winstanley is not precluded from raising new case law in a motion for relief from judgment,
even where it was already raised on direct appeal. See MCR 6.508(D)(2) (providing that a court
may not grant relief based on grounds decided against the defendant in a prior appeal “unless the
defendant establishes that a retroactive change in the law has undermined the prior decision”).
Moreover, it may be preferable for the state to evaluate Winstanley’s Lockridge claim because it
is potentially viable, and it would not be an efficient use of resources for the Court to
simultaneously evaluate the same claim on habeas review. Winstanley also has a good basis for
not pursing this claim before—Lockridge was decided after she filed her Petition in this Court.
And the state has not opposed Winstanley’s motion to stay. On balance, then, the Court finds that
the Thomas factors favor a stay.
Where, as here, a district court determines that a stay is appropriate pending exhaustion,
the Supreme Court directs that the court “should place reasonable time limits on a petitioner’s
trip to state court and back.” Rhines, 544 U.S. at 278. Thus, Winstanley must initiate her state
post-conviction remedies within ninety days of entry of this Court’s order and return to federal
court within ninety days of completing the exhaustion of state court post-conviction remedies.

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Hargrove, 300 F. 3d at 721; see also Geeter v. Bouchard, 293 F. Supp. 2d 773, 775 (E.D. Mich.
2003).
III.

CONCLUSION
For the reasons set forth above, IT IS ORDERED that Winstanley’s Motion to Stay (Dkt.

14) is GRANTED and the Court will hold the habeas petition in abeyance.
It is further ORDERED that Petitioner must file a motion for relief from judgment in
state court within ninety days of entry of this order. She shall notify this Court in writing that
such motion papers have been filed in state court. If she fails to file a motion or notify the Court
that she 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 those claims that
were raised in the original petition. After petitioner fully exhausts her new claims, she shall file
an amended petition that includes the new claims within ninety days after the conclusion of her
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 claims 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.
It is further ORDERED that upon receipt of a motion to reinstate the habeas petition
following exhaustion of state remedies, the Court will order the Clerk to reopen this case for

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statistical purposes.
IT IS SO ORDERED.

s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: February 8, 2016

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 February 8, 2016.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

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