Nichols v. Winn
OPINION AND ORDER granting 13 Motion to hold petition in abeyance.. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
ELMORE NICHOLS, JR.,
Case No. 2:15-cv-12809
Hon. Paul D. Borman
OPINION AND ORDER GRANTING MOTION TO HOLD PETITION FOR
WRIT OF HABEAS CORPUS IN ABEYANCE [Dkt. 13]
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254.
Petitioner Elmore Nichols, Jr. was convicted after a bench trial in Wayne Circuit Case
No. 12-008776 of first-degree home invasion. MICH. COMP. LAWS § 750.110a(2). The
court sentenced him as a fourth-time habitual felony offender to a term of 280 months
to 60 years’ imprisonment.1 The petition raises a single claim: Petitioner was denied
his Sixth Amendment right to self-representation when the trial court perfunctorily
denied his request to represent himself at trial. Presently before the Court is
Petitioner was also convicted in Wayne Circuit Case No. 12-007351 of another count of firstdegree home invasion, and he was sentenced to a term of 290 months to 80 years. Petitioner was
convicted of a third count of first-degree home invasion in the Oakland Circuit Court, and he
was sentenced to a term of 7 to 60 years. These two convictions and sentences are not challenged
in this action.
Petitioner’s motion to hold the petition in abeyance while he exhausts his state court
remedies with respect to a new sentencing claim. Dkt. 13. For the reasons that follow,
the motion will be granted.
Following his conviction and sentence, Petitioner filed a direct appeal in the
Michigan Court of Appeals. His appellate brief raised claims concerning the denial
of the right to self-representation, the trial court’s lack of inquiry into the breakdown
of Petitioner’s relationship with his trial counsel, and the scoring of the sentencing
The Michigan Court of Appeals rejected the first two claims, and it affirmed
Petitioner’s conviction in an unpublished opinion. People v. Nichols, No. 315284
(Mich. Ct. App. June 17, 2014). The court agreed with Petitioner’s third claim,
however, and vacated Petitioner’s sentence and remanded the case to the trial court
for resentencing. Id., at *5. Petitioner filed an application for leave to appeal in the
Michigan Supreme Court raising only his self-representation claim. The Michigan
Supreme Court denied the application because it was not persuaded that the question
presented should be reviewed. People v. Nichols, 858 N.W.2d 456 (Mich. 2015).
Petitioner subsequently filed the instant action, again asserting that the trial
court violated his right to self-representation. During review of the case it was
revealed that the trial court never resentenced Petitioner as directed by the Michigan
Court of Appeals. The parties were directed to file supplemental briefs addressing
whether the Court had jurisdiction to consider the petition.2
Respondent indicated in its supplemental brief that it contacted the Wayne
County Prosecutor’s Office and learned that the failure to resentence Petitioner was
inadvertent. Respondent indicated that a resentencing hearing was scheduled to take
place on November 18, 2016. Dkt. 12, at 3.
The Wayne Circuit Court’s website indicates that Petitioner was thereafter
erroneously resentenced on Wayne Circuit Case No. 12-007351 instead of No. 12008776, the sentence that was vacated by the Michigan Court of Appeals.3 On March
21, 2017, Petitioner filed a motion in the trial court complaining that he was
resentenced for the wrong conviction. The docket for Wayne Circuit Case No. 12008776, meanwhile, seems to indicate that a claim of appeal was filed on July 10,
2017, and that on August 7, 2017, Petitioner was appointed appellate counsel.
Petitioner has filed a motion to hold this case in abeyance while he appeals the
It is a statutory prerequisite to filing a petition under § 2254 that the petitioner be in custody
pursuant to the judgment he challenges in his habeas petition. 28 U.S.C. § 2254(a). “‘Final
judgment in a criminal case means sentence. The sentence is the judgment.’” In re Stansell, 828
F.3d 412, 416 (6th Cir. 2016) (quoting Berman v. United States, 302 U.S. 211, 212 (1937)).
This Court takes judicial notice of the information provided by a search of the Wayne Circuit
Court website, https://cmspublic.3rdcc.org. See Graham v. Smith, 292 F. Supp. 2d 153, 155, n. 2
(D. Me. 2003) (citing 21 Wright & Graham, Federal Practice and Procedure: Evidence § 5106).
erroneous failure to resentence him on the conviction challenged by his habeas
petition. Petitioner asserts that his due process right to be sentenced within a
reasonably prompt time has been violated by the inordinate delay.
A federal district court has discretion to stay a petition to allow a petitioner to
present unexhausted claims to the state courts and then return to federal court on a
perfected petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance
is available only in “limited circumstances” such as when the one-year statute of
limitations under 28 U.S.C. § 2244(d) poses a concern, the petitioner demonstrates
“good cause” for the failure to exhaust state remedies before proceeding in federal
court, the petitioner has not engaged in intentionally dilatory litigation tactics, and the
unexhausted claims are not “plainly meritless.” Id. at 277.
In the pending case, Petitioner’s unexhausted delay in resentencing claim does
not appear to be plainly meritless, nor does Petitioner appear to be engaged in dilatory
litigation tactics. Petitioner notes that he filed a post-conviction motion challenging
his resentencing on March 21, 2017. Because of potential concerns posed by the oneyear statute of limitations while Petitioner pursues relief in the state courts, the Court
concludes that the case should be stayed and held in abeyance while Petitioner
exhausts his state remedies with respect to his resentencing claim.
Where 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. Therefore, to ensure
that there are no delays by Petitioner in exhausting his state court remedies, this Court
will impose upon Petitioner time limits within which he must proceed with his state
court post-conviction proceedings. See Palmer v. Carlton, 276 F. 3d 777, 781 (6th
Accordingly, the stay is conditioned upon Petitioner diligently pursuing relief
in the state courts by pursuing timely appeals in the state court of his post-conviction
proceeding, and then by returning to federal court within sixty (60) days of completing
exhaustion of his state court remedies. See Hargrove v. Brigano, 300 F. 3d 717, 718
(6th Cir. 2002).
Accordingly, it is ORDERED that Petitioner’s motion to stay [Dkt. 13] is
GRANTED. The petition for writ of habeas corpus shall be held in abeyance pending
completion of Petitioner’s state post-conviction review proceeding. This order is
conditioned upon Petitioner timely appealing the denial of any motion for postconviction relief through the Michigan appellate courts and then re-filing his habeas
petition—using the case number already assigned to this case—within sixty (60) days
after the conclusion of the state court post-conviction proceedings.
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 v.
Bock, 207 F. Supp. 2d 668, 677 (E.D. Mich. 2002).
It is further ORDERED that upon receipt of a motion to reinstate the habeas
petition following exhaustion of state remedies, the Court may order the Clerk to
reopen this case for statistical purposes.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: August 30, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party
of record herein by electronic means or first class U.S. mail on August 30, 2017.
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