Rowe v. Bauman

Filing 11

OPINION and ORDER Denying Respondent's 9 MOTION to Dismiss and Staying 1 Petition for Writ of Habeas Corpus. Signed by District Judge Robert H. Cleland. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________________________________________________
MONTE WILLIAM ROWE,

Petitioner,

Case No. 2:16-cv-11350

v.
CATHERINE S. BAUMAN,
Respondent.
___________________________________/
OPINION AND ORDER DENYING RESPONDENT’S MOTION TO DISMISS AND
STAYING PETITION FOR WRIT OF HABEAS CORPUS
This is a habeas case brought by a Michigan prisoner under 28 U.S.C. § 2254.
Petitioner Monte William Rowe pleaded guilty to armed robbery, first-degree home
invasion, felon in possession of a firearm, and commission of a felony with a firearm. On
August 28, 2013, the Oakland County Circuit Court sentenced Petitioner to ten to forty
years for the armed robbery and home invasion convictions, six to forty years for the
felon-in-possession conviction, and a consecutive two years for the felony firearm
conviction. The pro se petition appears to raise two claims: (1) Petitioner was overcharged because there was insufficient evidence to support the charges, and (2)
Petitioner was denied his right to appeal when his appellate attorneys took no action in
the state courts. (Dkt. # 1.)
Respondent has filed a motion to dismiss the petition, arguing that Petitioner did
not exhaust his state court remedies. (Dkt. # 9.) Petitioner did not file a response to the
motion. For the reasons that follow, the Court will find that while Petitioner has not

satisfied the exhaustion requirement, ordinarily justifying dismissal, the Court will
instead stay the case and hold the petition in abeyance in light of concerns presented
by the statute of limitations.
I. BACKGROUND
Following his conviction and sentence, the trial court granted Petitioner’s request
for appellate counsel and appointed attorney Laura Kelly Young to represent him.
Young took no action on the appeal and, on July 11, 2014, the trial court granted her
motion to vacate her appointment.
The trial court then appointed the State Appellate Defender’s Office to represent
Petitioner. But on September 8, 2014, that office withdrew from representation because
of a conflict of interest. The trial court then appointed Nicholas Bostic on September 24,
2014, but Bostic likewise failed to file any appellate papers on behalf of Petitioner.
On January 20, 2015, attorney Gerald Lorence, citing the previous three
attorneys’ failure to file an appeal, filed a motion in the trial court to restore Petitioner’s
appellate rights. On January 28, 2015, the trial court issued an order stating that
Petitioner “shall have the right to challenge his plea by way of a motion to withdraw his
guilty plea pursuant to [Michigan Court Rule 6.610(E)(8)(a)(b)] within 90 days[.]” (Dkt.
#10-12.) Lorence, however, failed to file the motion to withdraw the plea.
Petitioner then filed a second motion to reinstate his appellate rights, this time
through his retained counsel Nacole Hurlbert, on October 26, 2015. (Dkt. # 10-13.) The
trial court denied the motion on December 9, 2015. (See Dkt. # 10-16.) Petitioner filed a
motion for reconsideration, which the trial court denied on January 21, 2016. (Id.)
According to the trial court’s docket sheet, no motion to withdraw Petitioner’s plea
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or other substantive motion for post-conviction relief was ever filed. (Dkt. # 10-1.)
Furthermore, according to the Clerk of the Michigan Court of Appeals, Petitioner has not
attempted to seek appellate relief in that court. (Dkt. # 10-17.)
II. DISCUSSION
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”); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). A Michigan
prisoner must properly present each issue he seeks to raise in a federal habeas
proceeding to both the Michigan Court of Appeals and the Michigan Supreme Court to
satisfy the exhaustion requirement. See Welch v. Burke, 49 F. Supp.2d 992, 998 (E.D.
Mich. 1999) (Cleland, J.); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
Petitioner has not exhausted his state court remedies because he never presented his
habeas claims to any state court. Furthermore, it appears that Petitioner still has a state
court remedy available to him because he may still file a motion for relief from judgment
in the trial court raising his habeas claims. See MCR 6.501, et seq.
Under Rose v. Lundy, 455 U.S. 509, 522 (1982), district courts are normally
directed to dismiss petitions containing unexhausted claims without prejudice in order to
allow petitioners to return to state court to exhaust remedies. However, since the
habeas statute was amended to impose a one-year statute of limitations, see 28 U.S.C.
§ 2244(d)(1), dismissal without prejudice often effectively precludes future federal
habeas review. In light of this dilemma, a federal district court has discretion to stay a
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petition raising unexhausted claims to allow a petitioner to present those claims to the
state courts and then return to federal court. See Rhines v. Weber, 544 U.S. 269, 276
(2005). Stay and abeyance is available only when the one-year statute of limitations
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.
The statute of limitations is plainly a concern here. The one-year limitations
period runs from “the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A). Here, the time for seeking direct review appears to have expired on or
about April 28, 2015, when the 90-day period for a filing a motion to withdraw
Petitioner’s plea expired under the terms of the trial court’s January 28, 2015, order.
The instant case was filed on April 13, 2016, mere weeks before expiration of the
limitations period. As a result, dismissal without prejudice in order to allow Petitioner to
exhaust his state court remedies would likely foreclose future habeas review.
Moreover, it appears that Petitioner has not engaged in intentionally dilatory
litigation tactics and that he has shown “good cause” for failing to exhaust his claims. He
requested the appointment of appellate counsel following his conviction and sentence,
yet none of the nearly half-dozen lawyers appointed or retained ever pursued appellate
relief on his behalf. And, due to the complete absence of a state appellate record, the
Court is unable to conclude whether Petitioner’s habeas claims are plainly meritless.
The Court therefore finds that it is not an abuse of discretion to stay this case while
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Petitioner exhausts his state court remedies.
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, the court will impose time limits within which he
must proceed with his state court post-conviction proceedings. See Palmer v. Carlton,
276 F. 3d 777, 781 (6th Cir. 2002). This order is conditioned upon Petitioner diligently
pursuing relief in the state courts by filing a motion for relief from judgment in the trial
court under Michigan Court Rule 6.501, et seq., and then pursuing timely appeals in the
Michigan Court of Appeals and the Michigan Supreme Court. Petitioner may then return
to federal court within sixty (60) days of completing the exhaustion of his state
post-conviction remedies. See Hargrove v. Brigano, 300 F. 3d 717, 718 (6th Cir. 2002).
III. CONCLUSION
IT IS ORDERED that Respondent’s Motion to Dismiss (Dkt.. # 9) is DENIED.
IT IS FURTHER ORDERED that the petition shall be held in abeyance pending
completion of Petitioner’s state post-conviction review proceedings. This order is
conditioned upon Petitioner filing a motion for relief from judgment in the trial court
within sixty (60) days of this order, timely appealing any denial of his motion for relief
from judgment 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 further ORDERS the Clerk of Court
to CLOSE this case for statistical purposes only. Nothing in this order or in the related
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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/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: January 18, 2017

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, January 18, 2017, by electronic and/or ordinary mail.
s/Shawna C. Burns
Case Manager Generalist
[phone]

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