Bardo v. Stewart
Filing
4
OPINION and ORDER denying 2 MOTION to Stay proceedings and dismissing 1 Petition for Writ of Habeas Corpus without prejudice. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SUSAN BARDO,
Case Number: 2:15-CV-13587
HON. GEORGE CARAM STEEH
Petitioner,
v.
ANTHONY STEWART,
Respondent.
/
OPINION AND ORDER DENYING PETITIONER’S
MOTION TO STAY PROCEEDINGS AND DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE
I.
Introduction
Michigan state prisoner Susan Bardo has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, asserting she is being held in violation of her
constitutional rights. Petitioner was convicted in Delta County Circuit Court of firstdegree child abuse, MICH. COMP. LAWS § 750.136b(2); and torture, MICH. COMP. LAWS §
750.85. On the same date she filed this petition, Petitioner also filed a motion for a stay
of the proceedings so that she can raise unexhausted claims in the state courts. The Court
denies Petitioner’s motion for a stay and dismisses the petition without prejudice. The
Court also denies a certificate of appealability.
II.
Procedural History
Petitioner pleaded guilty in Delta County Circuit Court to first-degree child abuse,
and torture. On August 13, 2013, she was sentenced to 20 to 50 years’ imprisonment for
each conviction. She filed an application for leave to appeal in the Michigan Court of
Appeals. The Michigan Court of Appeals denied leave to appeal. People v. Bardo, No.
320337 (Mich. Ct. App. March 21, 2014) (unpublished). Petitioner then filed an
application for leave to appeal with the Michigan Supreme Court. The Michigan
Supreme Court denied leave to appeal. People v. Bardo, 497 Mich. 903 (Mich. Nov. 25,
2014).
Petitioner filed her federal habeas petition on October 7, 2015. She raises a claim
that her sentence exceeded her statutory guidelines.
III.
Discussion
Petitioner seeks a stay so that she may raise unexhausted claims in state court. A
prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254 must first
exhaust all state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state
prisoners must give the state courts one full fair opportunity to resolve any constitutional
issues by invoking one complete round of the State’s established appellate review
process”). To satisfy this requirement, the claims must be “fairly presented” to the state
courts, meaning that the prisoner must have asserted both the factual and legal bases for
the claims in the state courts. See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.
2000). The claims must also be presented to the state courts as federal constitutional
2
issues. See Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). While the exhaustion
requirement is not jurisdictional, a “strong presumption” exists that a petitioner must
exhaust available state remedies before seeking federal habeas review. See Granberry v.
Greer, 481 U.S. 129, 131, 134-35 (1987). The burden is on the petitioner to prove
exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
A prisoner is required to comply with this exhaustion requirement as long as there
is still a state-court procedure available for her to do so. See Adams v. Holland, 330 F.3d
398, 401 (6th Cir. 2003). In this case, a procedure is available to Petitioner. She may file
a motion for relief from judgment in the Delta County Circuit Court under Michigan
Court Rule 6.502. If that motion is denied, she may seek review by the Michigan Court
of Appeals and Michigan Supreme Court by filing an application for leave to appeal.
Mich. Ct. R. 6.509; Mich. Ct. R. 7.203; Mich. Ct. R. 7.302. Nasr v. Stegall, 978 F. Supp.
714, 717 (E.D. Mich. 1997).
A federal district court has discretion to stay a habeas petition to allow a petitioner
to present unexhausted claims to the state courts in the first instance and then return to
federal court on a perfected petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005).
However, stay and abeyance is available only in “limited circumstances” such as when
the one-year statute of limitations applicable to federal habeas actions poses a concern,
and when the petitioner demonstrates “good cause” for the failure to exhaust state court
remedies before proceeding in federal court and the unexhausted claims are not “plainly
meritless.” Id. at 277.
3
Petitioner has not shown the need for a stay. Although she may be concerned that
the one-year statute of limitations applicable to federal habeas actions, see 28 U.S.C. §
2244(d), poses a problem, it does not. The one-year period does not begin to run until 90
days after the conclusion of direct appeal. Gonzalez v. Thaler, — U.S. —, 132 S. Ct. 641,
653 (2012) (stating that a conviction becomes final when the time for filing a certiorari
petition expires). The Michigan Supreme Court denied leave to appeal on November 25,
2014, and Petitioner had 90 days from that date, until January 26, 2015, to seek a writ of
certiorari with the United States Supreme Court. The one-year limitations period
commenced the next day, January 27, 2015. Approximately three-and-a-half months of
the one-year period remained when Petitioner filed this habeas petition on October 7,
2015. While the time in which this case has been pending in federal court is not
statutorily tolled, see Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (a federal habeas
petition is not an “application for State post-conviction or other collateral review” within
the meaning of 28 U.S.C. § 2244(d)(2) so as to statutorily toll the limitations period),
such time may be equitably tolled. See, e.g., Johnson v. Warren, 344 F. Supp. 2d 1081,
1088-89 (E.D. Mich. 2004). The limitations period will also be tolled during the time in
which any properly filed post-conviction or collateral actions are pending in the state
courts. See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-221 (2002).
Assuming that Petitioner files an appropriate post-conviction motion in the state court
within a reasonable portion of time, the remaining portion of the limitations period allows
her ample time to re-file this petition after the conclusion of proceedings in the state trial
4
and appellate courts. Thus, Petitioner has not shown the need for a stay and a nonprejudicial dismissal of the habeas petition is appropriate.
IV.
Conclusion
Accordingly, the Court DENIES Petitioner’s Motion to Stay and Abey Habeas
[dkt. #2] and DISMISSES WITHOUT PREJUDICE the petition for a writ of habeas
corpus. If Petitioner wishes to proceed on the claim contained in the petition and abandon
her unexhausted claims, she may move to reopen these proceedings within thirty days
from the date of the Order.
Before Petitioner may appeal the Court’s decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Reasonable jurists could not
debate the correctness of the Court’s decision. Accordingly, the Court DENIES a
certificate of appealability. This case is closed.
SO ORDERED.
Dated: November 2, 2015
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
5
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 2, 2015, by electronic and/or ordinary mail and also on
Susan Bardo #882489, Huron Valley Complex - Womens,
3201 Bemis Road, Ypsilanti, MI 48197..
s/Marcia Beauchemin
Deputy Clerk
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?