Dale v. Rivard
Filing
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OPINION & ORDER holding in abeyance the petition for writ of habeas corpus and administratively closing case. 8 Signed by District Judge Nancy G. Edmunds. (CBet)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DONALD DEJUAN DALE,
Petitioner,
Civil No. 2:15-CV-13197
HONORABLE NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
v.
STEVEN RIVARD,
Respondent,
____________________________________/
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF
HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE.
Donald Dejuan Dale, (“Petitioner”), confined at the St. Louis Correctional Facility in
St. Louis, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
In his pro se application, petitioner challenges his convictions for second-degree murder,
M.C.L.A. 750.317, and possession of a firearm in the commission of a felony, M.C.L.A.
750.227b. Petitioner has now filed a motion hold the petition in abeyance to 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.
For the reasons stated below, the Court holds the petition in abeyance and stays the
proceedings under the terms outlined in this opinion to permit petitioner to return to the
state courts to exhaust his additional claims. The Court will also administratively close the
case.
I. Background
Petitioner pleaded guilty to the above offenses in the Wayne County Circuit Court.
Petitioner’s conviction was affirmed on appeal. People v. Dale, No. 319850 (Mich.Ct.App.
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March 11, 2014); lv. den. 496 Mich. 867, 849 N.W.2d 349 (2014).
On August 31, 2015, petitioner filed this application for writ of habeas corpus.
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Petitioner seeks habeas relief on the grounds that he raised in the state courts on his direct
appeal.
II. Discussion
Petitioner has filed a motion to hold the habeas petition in abeyance so that he can
return to the state courts to raise claims that have not been exhausted with the state courts
and which are not included in the current petition.
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. Appx. 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 and judicial economy would be
served”)(quoting Nowaczyk, 299 F. 3d at 83); See also Thomas v. Stoddard, 89 F. Supp.
3d 937, 943 (E.D. Mich. 2015). Indeed, although there is no 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, in order for a federal court to justify departing from the
“heavy obligation to exercise jurisdiction,” there must be some compelling reason to prefer
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Under the prison mailbox rule, this Court assumes that petitioner filed his habeas petition on
August 31, 2015, the date that it was signed and dated. See See Towns v. U.S., 190 F. 3d 468, 469 (6th
Cir. 1999).
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a dismissal over a stay. Nowaczyk, 299 F. 3d at 82 (internal quotation omitted); See also
Bowling, 246 Fed. Appx. at 306 (district court erred in dismissing 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).
The Court grants petitioner’s motion to hold the petition in abeyance while he returns
to the state courts to exhaust. The outright dismissal of the petition, albeit without
prejudice, might result in preclusion of consideration of the 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).
A common
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).
Other considerations merit holding the petition in abeyance while petitioner returns
to the state courts to exhaust his new claims. In particular, “the Court considers the
consequences to the habeas petitioner if it were to proceed to adjudicate the petition and
find that relief is not warranted before the state courts ruled on unexhausted claims. In that
scenario, should the petitioner subsequently seek habeas relief on the claims the state
courts rejected, he would have to clear the high hurdle of filing a second habeas petition.”
Thomas, 89 F. Supp. 3d at 942 (citing 28 U.S.C. 2244(b)(2)). Moreover, “[I]f this Court
were to proceed in parallel with state post-conviction proceedings, there is a risk of wasting
judicial resources if the state court might grant relief on the unexhausted claim.” Id. Other
considerations merit granting a stay also. This Court is currently not in a position to
determine whether petitioner’s new claims have any merit, thus, the Court cannot say that
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petitioner’s claims are “plainly meritless.” Id. at 943. Nor, on the other hand, can the Court
at this time say that petitioner’s new claims plainly warrant habeas relief. Id. If the state
courts deny post-conviction relief, this Court would still benefit from the state courts’
adjudication of these claims in determining whether to permit petitioner to amend his
petition to add these claims. Id. Finally, this Court sees no prejudice to respondent in
staying this case, whereas petitioner “could be prejudiced by having to simultaneously fight
two proceedings in separate courts and, as noted, if this Court were to rule before the state
courts, [petitioner] would have the heavy burden of satisfying 28 U.S.C. § 2244(b)(2)’s
second-or-successive-petition requirements” should he seek habeas relief on his new
claims. Thomas, 89 F. Supp. 3d at 943.
However, even where a district court determines that a stay is appropriate pending
exhaustion, the district court “should place reasonable time limits on a petitioner’s trip to
state court and back.” Rhines v. Weber, 544 U.S. 269, 278 (2005). To ensure that there
are no delays by petitioner in exhausting state court remedies, this Court imposes time
limits within which petitioner must proceed with his state court post-conviction proceedings.
See Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002).
The Court holds the petition in abeyance to allow petitioner to initiate post-conviction
proceedings in the state courts. This tolling is conditioned upon petitioner initiating his state
post-conviction remedies within ninety days of receiving this Court’s order and returning to
federal court within ninety days of completing the exhaustion of state court post-conviction
remedies. Hargrove, 300 F. 3d at 721; See also Geeter v. Bouchard, 293 F. Supp. 2d 773,
775 (E.D. Mich. 2003).
Petitioner’s method of properly exhausting these claims in the state courts would be
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through filing a motion for relief from judgment with the Wayne County Circuit Court under
M.C.R. 6.502. See Wagner v. Smith, 581 F. 3d 410, 419 (6th Cir. 2009); See also Mikko
v. Davis, 342 F. Supp. 2d 643, 646 (E.D. Mich. 2004). A trial court is authorized to appoint
counsel for petitioner, seek a response from the prosecutor, expand the record, permit oral
argument, and hold an evidentiary hearing. M.C.R. 6.505-6.507, 6.508 (B) and (C). 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. 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 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).
III. ORDER
IT IS HEREBY ORDERED that the proceedings are STAYED and the Court will hold
the habeas petition in abeyance. Petitioner must file a motion for relief from judgment in
state court within ninety days of receipt of this order. He shall notify this Court in writing
that such motion papers have been filed in state court. If he fails to file a motion or notify
the Court that he 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 his
new claims, he shall file an amended petition that includes the new claims within ninety
days after the conclusion of his state court post-conviction proceedings, along with a motion
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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. See Thomas, 89 F. Supp. 3d
at 943-944.
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/ Nancy G. Edmunds
HON. NANCY G. EDMUNDS
UNITED STATES DISTRICT COURT
DATED: December 2, 2015
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