Foster v. Winn
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART Petitioner's Motion to Amend/Supplement Ground One of Petition 12 ; GRANTING Petitioner's Motion to Hold Petition in Abeyance 13 ; and Administratively Closing Case. Signed by District Judge Laurie J. Michelson. (KJac)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:15-CV-12265
Honorable Laurie J. Michelson
Magistrate Judge Michael J. Hluchaniuk
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
PETITONER’S MOTION TO AMEND/SUPPLEMENT GROUND ONE OF
PETITION ; GRANTING PETITIONER’S MOTION TO HOLD PETITION IN
ABEYANCE ; AND ADMINISTRATIVELY CLOSING CASE
Ed Foster, a Michigan prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. (R. 1.) Foster challenges his state-court conviction for felony-murder. The petition raises
seven claims for relief. Now before the Court are Foster’s Motion to Amend/Supplement Ground
One of Petition and Motion to Hold Petition in Abeyance. (R. 12, 13.) For the reasons set forth,
the Court will grant the motion to amend/supplement in part, grant the motion to hold the petition
in abeyance, establish conditions under which Foster must proceed, and administratively close the
Foster was convicted of felony-murder following a jury trial in Van Buren County Circuit
Court and sentenced to life imprisonment without the possibility of parole. His conviction was
affirmed on direct appeal by the Michigan Court of Appeals. People v. Foster, No. 301361, 2013
WL 4033639 (Mich. Ct. App. Aug. 8, 2013). The Michigan Supreme Court then denied Foster’s
application for leave to appeal. People v. Foster, 496 Mich. 855 (Mich. 2014).
On June 16, 2015, Foster filed the pending habeas corpus petition.
A. Motion to Amend/Supplement
Foster asks the court to allow him to amend or supplement ground one of his petition
asserting that the prosecutor knowingly presented perjured testimony of a key witness, Keith
Nickerson. Federal Rule of Civil Procedure 15 is applicable to habeas proceedings. Mayle v. Felix,
545 U.S. 64, 655 (2005). Pursuant to this Rule the Court “should freely give leave when justice so
requires.” Fed. R. Civ. P. 15(a)(2). In deciding whether to grant a motion to amend the petition,
the Court considers bad faith, undue delay, prejudice to the opposing party, futility of the
amendment, and whether the petitioner previously amended his pleadings. See, e.g., Foman v.
Davis, 371 U.S. 178 (1962); Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998).
Foster first seeks to amend his petition to provide additional support and argument for the
Keith Nickerson perjured testimony claim. This request does not appear to be made in bad faith
and this is Foster’s first motion to amend his pleadings. Futility is not an issue because Foster does
not seek to add a new claim for relief, just to supplement his existing argument. And even though
Winn has filed a response and a Rule 5 filing, he makes no claim of prejudice. The Court
recognizes that Foster’s motion to amend comes twenty-one months after he filed his petition, but
mere undue delay alone is insufficient to deny a motion to amend and again, Respondent does not
claim prejudice. Coe, 161 F.3d at 342. For these reasons, and because Winn does not oppose it,
the Court will grant this portion of Foster’s motion.
Foster also seeks to supplement the petition with the affidavit of Tommie Jeffries, which,
he argues, advances his theory that there was a “common theme” of police coercing witnesses to
testify falsely. (R.12, PID 5744–45.) This affidavit was not presented to the state courts. “Although
state prisoners may sometimes submit new evidence in federal court, AEDPA’s statutory scheme
is designed to strongly discourage them from doing so.” Cullen v. Pinholster, 563 U.S. 170, 186
(2011). When the state courts have adjudicated a claim on the merits, a federal court’s review in
habeas corpus proceedings is ordinarily limited to the record presented to the state courts. Id. at
180; see also Holland v. Jackson, 542 U.S. 649, 652 (2004) (per curiam). Foster’s motion does not
address the propriety of expanding the record in this case and a review of the Michigan Court of
Appeals’ opinion suggests that they adjudicated Foster’s perjured testimony claim on the merits.
(R. 9-31, PID 5101–5104.) Thus, as consideration of the proposed affidavit on habeas review is
likely to be “categorically barred,” Shoemaker v. Jones, 600 F. App’x 979, 983 n.1 (6th Cir. 2015),
the Court is going to deny Foster’s request to supplement the petition with Jeffries’ affidavit.1
B. Motion to Hold Petition in Abeyance
Foster has filed a separate motion to hold the petition in abeyance to allow him to go back
to state court to raise three additional claims: an ineffective-assistance-of-trial-counsel claim based
upon a failure to investigate claims of coercive police interrogation tactics, an ineffectiveassistance-of-appellate-counsel claim, and another perjured testimony claim for several other
witnesses besides Keith Nickerson. (R. 13.)
A federal habeas petitioner must first exhaust all available remedies in state court,
28 U.S.C. § 2254(b), but a federal court may stay a federal habeas corpus proceeding pending
resolution of yet unexhausted state post-conviction proceedings. See Rhines v. Weber, 544 U.S.
269, 276 (2005) (“District courts do ordinarily have authority to issue stays where such a stay
would be a proper exercise of discretion.”) (citations omitted). In Rhines, the Supreme Court held
This denial is without prejudice should the propriety of the affidavit change following
Foster’s exhaustion of state court remedies.
that a federal court may stay a petition for habeas corpus relief and hold further proceedings in
abeyance while a petitioner exhausts unexhausted claims if outright dismissal of the petition would
jeopardize the timeliness of a future petition, there is good cause for the petitioner’s failure to
exhaust state court remedies, the unexhausted claims are not “plainly meritless,” and “there is no
indication that the petitioner engaged in intentionally dilatory tactics.” Id. at 278.
The Rhines decision, however, concerned a mixed habeas petition, that is, the petition
presented claims that had been properly exhausted in state court and claims that had not. Id. at
272–73. The petition at issue in this case raises only exhausted claims. Foster seeks a stay to allow
him to present additional unexhausted claims in state court. While Rhines did not address this
precise situation, this Court has held that such a stay may be appropriate. See Thomas v. Stoddard,
89 F. Supp. 3d 937 (E.D. Mich. 2015); see also Armour v. MacLaren, No. 15-10753, 2015 WL
9918195, at *1 (E.D. Mich. Dec. 4, 2015). Other federal courts have also allowed for stays of fully
exhausted federal habeas corpus petitions pending the exhaustion of other claims in state court.
See Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016) (holding that a district court has discretion
to issue stays in cases of fully exhausted petitions); Doe v. Jones, 762 F.3d 1174, 1181 (10th Cir.
2014) (a district court may consider a Rhines stay even in the case of an unmixed petition).
Where a habeas petition presents only exhausted claims, the Court may either adjudicate
the exhausted claims while the petitioner simultaneously exhausts additional claims in state court
or stay the petition while the petitioner seeks state-court collateral relief. This Court’s decision
whether to grant a stay is informed “by the potential for parallel federal habeas and state postconviction proceedings and Rhines.” Thomas, 89 F. Supp. 3d at 942–43. The following factors
inform a federal court’s decision to proceed in parallel with state post-conviction proceedings or
instead hold a habeas corpus petition in abeyance:
(1) whether the exhausted claims in the petition are plainly meritorious while the
unexhausted claims are plainly meritless (if so, proceeding to adjudicate the claims
in the petition would avoid unnecessary expenditure of state court resources while
still respecting the policies underlying exhaustion);
(2) whether the unexhausted claims are potentially meritorious (if so, allowing the
state court to adjudicate them first might save federal court resources, furthering
the policies underlying exhaustion);
(3) whether the unexhausted claims could be the bases for a viable second habeas
petition (if so, staying until post-conviction proceedings are complete and then
allowing petitioner to amend the pending petition would avoid the hurdles involved
in filing a successive habeas petition);
(4) whether the exhausted and unexhausted claims are legally or factually related
(if so, it might be preferable for a federal court to delay ruling on an exhausted
claim to avoid affecting the state court’s view of an unexhausted claim);
(5) whether the habeas petitioner has good cause for seeking the stay (if not, the
consequences of requiring a petitioner to proceed in two courts at once are less
unfair to the petitioner);
(6) the potential prejudice to the party opposing the habeas corpus petition; and
(7) any other considerations relating to judicial economy and federal-state relations.
Armour v. MacLaren, No. 15-10753, 2015 WL 9918195, at *1 (citing Thomas, 89 F.Supp.3d at
The Thomas factors weigh in favor of a stay. The Court cannot fully evaluate the merits of
Foster’s unexhausted claims based upon the record presently before the Court, but they do not
appear to be plainly meritless. Further, Foster raises constitutional claims upon which habeas relief
may be granted. The claims are best first addressed and decided by the state courts, which may
conduct an evidentiary hearing or otherwise allow Foster to supplement the record as allowed by
state law. Foster also alleges good cause for failure to exhaust his state court remedies. He
attempted to raise these claims in a pro per supplemental brief in the Michigan Court of Appeals,
but the brief was not timely filed. Foster’s appellate counsel admitted in state court that the failure
to timely file the supplemental brief “was due to a clerical error, an oversight, and a mix-up at [the
State Appellate Defender’s Office] for which [Foster] bears no responsibility.” (R.13, PID 5795–
96.) The Court anticipates no prejudice to Respondent in staying the petition. Lastly, if the Court
denied the stay and decided the petition before completion of state-court collateral review, Foster
would need to satisfy a very high burden to receive authorization to file a successive habeas
petition under 28 U.S.C. § 2244(b)(2). The Court will therefore grant Foster’s motion to hold his
petition in abeyance.
It is hereby ordered that the Court GRANTS IN PART AND DENIES IN PART
Petitioner’s motion to amend/supplement ground one of petition (R. 12.) The Court grants
Petitioner’s request to supplement ground one with additional argument as set forth in pages 1–15
of the motion. (R. 12, PID 5746–5762.) But the Court denies Petitioner’s motion to supplement
the petition with the Jeffries affidavit.
It is further ordered that the Court GRANTS Petitioner’s motion to hold petition in
abeyance (R. 13.) Petitioner must file a motion for relief from judgment in state court within 60
days of entry of this order. Within 60 days after the conclusion of the state-court post-conviction
proceedings, Petitioner may move to amend his petition to add the newly-exhausted claims. To
avoid administrative difficulties, the Court orders the Clerk of Court to close this case for statistical
purposes only. Nothing in this order shall be considered a disposition of the petition.
s/Laurie J. Michelson
LAURIE J. MICHELSON
U.S. DISTRICT JUDGE
Dated: September 28, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court=s ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on September 28, 2017.
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