Mullins v. Barrett

Filing 8

OPINION AND ORDER DENYING WITHOUT PREJUDICE THE REQUEST TO FILE A 6500MOTION 7 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LEONARD MULLINS,
Case No. 15-cv-11962

Petitioner,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
JOE BARRETT,

UNITED STATES MAGISTRATE JUDGE
MICHAEL J. HLUCHANIUK

Respondent.
/

OPINION AND ORDER DENYING WITHOUT PREJUDICE
THE “REQUEST TO FILE A 6500 MOTION” [7]
I. INTRODUCTION
On May 27, 2015, Leonard Mullins (“Petitioner”) filed a petition for writ of habeas
corpus with this Court pursuant to 28 U.S.C. § 2254. See Dkt. No. 1. Presently before the Court
is Petitioner’s “Request to File a 6500 Motion,” in which he asks the Court to stay the petition
and hold his case in abeyance so that he can file a post-conviction motion for relief from
judgment in the state court. See Dkt. No. 7. For the reasons discussed below, the Court will
DENY Petitioner’s Request WITHOUT PREJUDICE to Petitioner filing a proper motion to
hold that petition in abeyance.
II. 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,

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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
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
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, 161 L. Ed. 2d 669 (2005) (citing Rhines v.
Weber, 544 U.S. 269, 278, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005)). A federal court may stay
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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 is not entitled to a stay of proceedings because he has failed to delineate
the issues that he wishes to raise in his state post-conviction motion in the state courts.
Accordingly, this Court is unable to determine whether his claims have any potential merit or
whether they are “plainly meritless.” Moreover, Petitioner does not state why such claims have
not been exhausted with the state courts. Thus, he has failed to establish good cause for failing to
exhaust his claims in the state court, so as to entitle him to a stay of the proceedings.
Petitioner’s bare-bones request for a stay of proceedings does not satisfy the requirements
under Rhines for the issuance of a stay of proceedings. See, e.g., Cunningham v. Conway, 717 F.
Supp. 2d 339, 349 (W.D.N.Y. 2010). Although Petitioner claims that he made a previous request
to hold the petition in abeyance when he filed his petition, a review of Petitioner’s original
habeas application shows no such request. See Dkt. No. 1. Accordingly, the Court will DENY
Petitioner’s “REQUEST to file a 6500 motion back to the lower courts” [7] WITHOUT
PREJUDICE to petitioner filing a properly filed motion to hold that petition in abeyance.
III. CONCLUSION
For the reasons discussed, it is HEREBY ORDERED that the “REQUEST to file a 6500
motion back to the lower courts” [7] is DENIED WITHOUT PREJUDICE to Petitioner filing
a proper motion to hold the petition in abeyance.
SO ORDERED.
Dated: June 29, 2015
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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