Jackson v. Berghuis

Filing 5

OPINION AND ORDER GRANTING PETITIONERS MOTION TO STAY AND ABEYANCE OF HABEAS PROCEEDING 2 , HOLDING IN ABEYANCE THE PETITION FOR WRIT OF HABEAS CORPUS 1 , AND ADMINISTRATIVELY CLOSING THE CASE. Signed by District Judge Gershwin A. Drain. (Bankston, T)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DOUGLAS JACKSON,
Case No. 15-cv-11622

Petitioner,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
MARY BERGHUIS,

UNITED STATES MAGISTRATE JUDGE
MICHAEL J. HLUCHANIUK

Respondent.
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OPINION AND ORDER GRANTING PETITIONER’S MOTION TO STAY AND ABEYANCE OF
HABEAS PROCEEDING [2], HOLDING IN ABEYANCE THE PETITION FOR WRIT OF
HABEAS CORPUS [1], AND ADMINISTRATIVELY CLOSING THE CASE
I. INTRODUCTION
Douglas Jackson (“Petitioner”), confined at the Brooks Correctional Facility in
Muskegon Heights, Michigan, filed a Petition for Writ of Habeas Corpus [1] pursuant to 28
U.S.C. § 2254. In the Petition, Petitioner challenges his convictions and sentences for three
counts of first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520(b); one count
of assault with intent to do great bodily harm, MICH. COMP. LAWS § 750.84; and one count of
unlawful imprisonment, MICH. COMP. LAWS § 750.349b. See Dkt. No. 1. Petitioner seeks
habeas relief for the claims that he raised on his two appeals before the Michigan Court of
Appeals and the Michigan Supreme Court. See id.
Petitioner also filed a Motion to Stay and Abeyance of Habeas Proceeding [2], seeking to
hold the Petition in abeyance and 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. See Dkt. No. 2. For the reasons discussed below, the Court will GRANT the

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Motion to Stay and Abeyance of Habeas Proceeding [2]. The Court will hold the Petition in
abeyance and stay the proceedings under the terms outlined in this opinion so Petitioner may
exhaust his additional claims in state court. The Court will also administratively close the case.
II. BACKGROUND
Petitioner was convicted following a jury trial in the Wayne County Circuit Court.
Petitioner’s conviction was affirmed on appeal, although the case was remanded for resentencing. See People v. Jackson, No. 295994, 2011 WL 1519654 (Mich. Ct. App. Apr. 21,
2011), lv. den., 490 Mich. 911, 805 N.W. 2d 191 (2011). After re-sentencing, Petitioner’s
sentence was affirmed on appeal. See People v. Jackson, No. 308329, 2013 WL 4746759 (Mich.
Ct. App. Sept. 3, 2013), lv. den., 495 Mich. 935, 843 N.W. 2d 209 (2014).
III. DISCUSSION
A. LEGAL STANDARD
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). Moreover, 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. App’x 303, 306 (6th Cir. 2007) (quoting
Nowaczyk, 299 F. 3d at 83, to find that 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”).
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. See
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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). There is not a 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;
however, in order for a federal court to justify departing from the “heavy obligation to exercise
jurisdiction,” there must be some compelling reason to prefer a dismissal over a stay. See
Nowaczyk, 299 F. 3d at 82 (internal quotation omitted); see also Bowling, 246 Fed. App’x at 306
(finding the district court erred in dismissing a 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).
B. LEGAL ANALYSIS
Here, the Court will grant Petitioner’s motion to hold his Petition in abeyance while he
returns to the state courts to exhaust his additional claims. 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).

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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 United States 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, 125 S. Ct. 1807, 1813, 161 L. Ed. 2d 669 (2005) (citing Rhines
v. Weber, 544 U.S. 269, 278, 125 S. Ct. 1528, 1535, 161 L. Ed. 2d 440 (2005)). A federal court
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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 meritless.” Rhines, 544 U.S. at 278.
Here, Petitioner’s claims do not appear to be “plainly meritless.” Wagner v. Smith, 581 F.
3d 410, 419 (6th Cir. 2009). Moreover, 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.”
In sum, the Court finds that a stay is appropriate pending exhaustion of state court remedies.
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, this Court will impose time limits upon Petitioner 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 Wayne County Circuit Court under
M.C.R. 6.502. See Wagner, 581 F. 3d at 419. 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. See M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302; Nasr v.
Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997). Petitioner is required to appeal the denial of
his post-conviction motion to the Michigan Court of Appeals and the Michigan Supreme Court

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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).
IV. CONCLUSION
Accordingly, for the reasons discussed herein, the Court HEREBY GRANTS
Petitioner’s Motion to Stay and Abeyance of Habeas Proceeding [2].
IT IS ORDERED that these proceedings are STAYED. The Court will hold Petitioner’s
Habeas Petition [1] in abeyance.
IT IS FURTHER ORDERED that Petitioner must file a motion for relief from
judgment in state court within sixty days of receipt of this order.
Petitioner is ORDERED to notify this Court in writing that such motion papers have
been filed in state court. If Petitioner fails to file a motion in state court, or notify this Court
that he has done so, this Court will lift the stay, reinstate the original Petition for Writ of Habeas
Corpus [1] to the Court’s active docket ,and proceed to adjudicate only the claims that were
raised in the original Habeas Petition.
After Petitioner fully exhausts his new claims, Petitioner is ORDERED to 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 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 Opinion and Order, or in the related docket
entry, shall be considered a dismissal or disposition of this matter. See Sitto, 207 F. Supp. 2d at

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677. 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 statistical purposes.
SO ORDERED.
Dated: May 12, 2015
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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