Byrd v. Bauman

Filing 9

OPINION and ORDER Denying 6 MOTION TO EXTEND Enlargement of Time to State Habeas - Signed by District Judge Laurie J. Michelson. (JJoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CURTIS JEROME BYRD,
Petitioner,

Case No. 15-13528
Honorable Laurie J. Michelson

v.
CATHERINE S. BAUMAN,
Respondent.
OPINION AND ORDER DENYING PETITIONER’S MOTION TO STAY [6]
Petitioner Curtis Jerome Byrd, a Michigan prisoner, filed a petition for habeas corpus
pursuant to 28 U.S.C. § 2254. (Dkt. 1, Pet.) Byrd challenges his state-court convictions,
including first-degree felony murder, Mich. Comp. Laws § 750.316(b), assault with intent to rob
while armed, Mich. Comp. Laws § 750.89, and possession of a firearm during the commission of
a felony, Mich. Comp. Laws § 750.227b.
In a motion filed on May 18, 2016, Byrd—who is represented by counsel—asked the
Court to hold his habeas petition in abeyance. (Dkt. 6, Pet.’s Mot.) He wishes to return to state
court to exhaust additional claims. For the reasons that follow, the Court will deny the request.
I.
In its opinion and order affirming Byrd’s convictions, the Michigan Court of Appeals
described the events giving rise to this case as follows:
Defendant’s convictions arise from the shooting death of Richard Joiner during an
attempted robbery at a bank automated teller machine (ATM). Defendant and his
codefendant, Charletta Atkinson, drove to the bank intending to rob someone.
Defendant was armed with a gun. After they arrived at the bank, Atkinson took
the gun from defendant and got out of the car. She confronted Joiner, cocked the
gun, and demanded his money. Joiner grabbed the gun, and he and Atkinson
fought for control over the gun as Joiner tried to get inside his car. During the

struggle, the gun discharged and Joiner was fatally shot in the head. Atkinson
returned to her vehicle, and defendant drove away.
People v. Byrd, No. 301322, 2012 WL 1649788, at *1 (Mich. Ct. App. May 10, 2012).
After pursing direct appeals and post-conviction relief in the state courts without success,
Byrd filed a petition for a writ of habeas corpus with this Court through his (then) counsel.
Byrd’s petition raises three claims. First, Byrd maintains that his trial counsel was
ineffective for failing to request an instruction that accident is a defense to felony murder. (Pet.
Ex. B, Grounds for Relief at 2–3.) Byrd raised this issue in his direct appeal but not in his statecourt post-conviction relief. (Id. at 3.) Second, Byrd argues that aspects of the prosecutor’s
closing argument deprived him of a fair trial. (Id. at 4.) Similar to his first claim, Byrd raised this
issue in his direct appeal but not in his state-court post-conviction relief. (Id. at 6.) Third, Byrd
claims that his trial counsel was ineffective by providing erroneous legal advice on the law of
aiding and abetting. (Id. at 6–7.) Unlike the first two claims, Byrd did not raise this issue in his
direct appeal but did raise it in his state-court post-conviction relief. (Id. at 11.)
Several months after Byrd filed his petition, he obtained a new attorney. (Dkt. 4.)
Through his new counsel, Byrd then filed a “Motion for Enlargement of Time to Stay Habeas
Corpus Petition and Administratively Close the Case.” Byrd maintains that he now has six new
unexhausted ways to attack his conviction in state court: (1) “functional denial of counsel”; (2)
“the fact that the government took advantage of his emotional disabilities”; (3) “actual
innocence”; (4) “government (police/prosecution) misconduct”; (5) “lack of proof beyond a
reasonable doubt”; (6) and “[a] jurisdictional challenge.” (Pet.’s Mot., at 1–2.)
II.
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
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Cir. 1998) (per curiam). This is so even for a fully exhausted federal habeas petition. See
Bowling v. Haeberline, 246 F. App’x 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 v. Warden, New Hampshire
State Prison, 299 F. 3d 69, 83 (1st Cir. 2002)).
In many instances though, the outright dismissal of a habeas petition to allow a petitioner
to exhaust state remedies might result in a time-bar when the petitioner returns to federal court
due to the one-year statute of limitations contained in the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). See 28 U.S.C. § 2244(d)(1); see also Hargrove v. Brigano, 300 F.3d
717, 720-21 (6th Cir. 2002). In this case, AEDPA’s one-year statute of limitations does pose a
problem for Byrd. In fact, he openly admits in his petition that he filed it after the statute of
limitations expired. (Pet. at 15.) More months have passed since that filing. And there is no
statutory tolling while a habeas petition is pending before a federal court, Duncan v. Walker, 533
U.S. 167, 173 (2001), and as Respondent has noted in her currently pending motion to dismiss on
statute of limitations grounds (see Dkt. 7), equitable tolling is only available in extraordinary
circumstances, Holland v. Florida, 560 U.S. 631, 649 (2010).
The Supreme Court has addressed the procedure by which a district court may stay a
“mixed” petition (one that consists of both exhausted and unexhausted claims). See Rhines v.
Weber, 544 U.S. 269, 277–78 (2005) (“[S]tay and abeyance is only appropriate when the district
court determines there was good cause for the petitioner’s failure to exhaust his claims . . .
[E]ven if a petitioner had good cause for that failure, the district court would abuse its discretion
if it were to grant him a stay when his claims are plainly meritless. . . . And if a petitioner
engages in abusive litigation tactics or intentional delay, the district court should not grant him a

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stay at all.”). But Rhines is not directly applicable to Byrd’s situation, as his current habeas
petition appears to contain only exhausted claims.
In evaluating a similar motion, this Court recently concluded:
[W]here, as here, a habeas petition contains only exhausted claims, and the
petitioner seeks to stay the petition so that he can return to state court on
unexhausted claims not yet part of the petition, the Court believes that its
discretion to stay the petition is informed both by the potential for parallel federal
habeas and state post-conviction proceedings and Rhines. Chief among these
considerations is the apparent merit of the unexhausted and exhausted claims,
and, relatedly, whether this Court would benefit from a state-court ruling on the
unexhausted claims. . . . But Rhines ‘good cause’ requirement is not irrelevant:
the Court is less likely to find parallel-litigation unfairly prejudicial to a habeas
petitioner if the petitioner lacks a good reason for having created that potential in
the first place.
Thomas v. Stoddard, 89 F. Supp. 3d 937, 942–43 (E.D. Mich. 2015); see also Armour v.
MacLaren, No. 15-10753, 2015 WL 9918195, at *1 (E.D. Mich. Dec. 4, 2015).
With these principles in mind, the Court finds that a stay would be inappropriate in these
circumstances. For one, Byrd—though represented by an attorney—has failed to provide good
cause for excusing him from failing to present his new claims to a Michigan court before seeking
a writ of habeas corpus from this one. His brief makes no argument to that effect. Further, based
on the information currently before the Court, the Court is hard pressed to find that Byrd’s
unexhausted claims are anything but “plainly meritless.” Byrd’s brief suggests that his new
grounds for relief are in an attached petition (Pet.’s Mot. at 2), but that attachment appears
nowhere on the docket. Additionally, Byrd’s counsel attached several exhibits to his motion
purporting to be affidavits, but the exhibits contain only a cover page. Thus, all that the Court is
left with are conclusory statements of the six claims Byrd intends to raise. For example, Byrd
says this for one of his new claims: “A jurisdictional challenge is also made.” (Pet.’s Mot. at 2.)
This is not enough to justify staying this case and holding it in abeyance.

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III.
Accordingly, Petitioner’s Motion for Enlargement of Time to Stay Habeas Corpus
Petition and Administratively Close Case (Dkt. 6) is DENIED.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE
Dated: June 15, 2016

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the attorneys
and/or parties of record by electronic means or U.S. Mail on June 15, 2016.
s/Jane Johnson
Case Manager to
Honorable Laurie J. Michelson

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