Foreman v. Bauman

Filing 7

ORDER Granting Motion: 6 MOTION to Hold Habeas Proceedings in Abeyance and Administratively Closing Case filed by Nikko C. Foreman. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NIKKO C. FOREMAN,
Case Number: 2:16-CV-12782
HONORABLE VICTORIA A. ROBERTS

Petitioner,
v.
CATHERINE BAUMAN,
Respondent.
/

ORDER GRANTING PETITIONER’S MOTION TO HOLD HABEAS
PROCEEDING IN ABEYANCE AND ADMINISTRATIVELY CLOSING CASE
This is a habeas case under 28 U.S.C. § 2254. Petitioner Nikko C. Foreman is a
state inmate at the Alger Correctional Facility in Munising, Michigan. He challenges his
convictions for first-degree premeditated murder and possession of a firearm during the
commission of a felony. Now before the Court is Petitioner’s Motion to Hold Habeas
Proceeding in Abeyance. The Court grants the motion.
I.
Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of
first-degree premeditated murder and felony firearm. On April 12, 2013, he was
sentenced to life imprisonment for the murder conviction and two years’ imprisonment
for the felony-firearm conviction.
Petitioner filed an appeal of right in the Michigan Court of Appeals, claiming that
insufficient evidence supported his conviction, that the verdict was against the great

weight of the evidence and that the prosecutor engaged in misconduct. The Michigan
Court of Appeals affirmed Petitioner’s convictions. People v. Foreman, No. 315947,
2014 WL 5165100 (Mich. Ct. App. Oct. 14, 2014). Petitioner filed an application for
leave to appeal in the Michigan Supreme Court, which denied leave to appeal. People v.
Foreman, 497 Mich. 1028 (Mich. 2015).
Petitioner filed the pending habeas petition on July 19, 2016. He raises the same
claims raised on direct review in state court. Petitioner also filed a motion to stay this
proceeding so he may return to state court and raise additional, unexhausted claims in
state court.
II.
State prisoners must exhaust available state remedies for each of the claims
presented in a habeas petition before seeking a federal writ of habeas corpus. 28 U.S.C. §
2254(b)(1). Petitioner seeks a stay because, although the claims raised in the petition are
exhausted, he would like to raise additional, unexhausted claims in state court. He states
he intends to raise these claims in state court: prosecutorial misconduct, ineffective
assistance of trial and appellate counsel, custodial statement should have been suppressed,
and trial court abuse of discretion.
A federal court may stay a federal habeas petition and hold further proceedings in
abeyance pending resolution of state court post-conviction proceedings if outright
dismissal of a habeas petition would jeopardize the timeliness of a future petition, there is
good cause for the petitioner’s failure to exhaust those claims, the unexhausted claims are
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not “plainly meritless,” and “there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S. 269, 278 (2005).
The Court finds that a stay is warranted in this case. First, the outright dismissal of
the petition, even without prejudice, may preclude future consideration of Petitioner’s
claims in this court due to the expiration of the statute of limitations. See 28 U.S.C. §
2241(d)(1). Staying a habeas corpus proceeding is appropriate where a second, exhausted
habeas petition may be time barred by the AEDPA’s statute of limitations. See Hargrove
v. Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002).
Second, Petitioner asserts ineffective assistance of appellate counsel as cause for
his failure to exhaust these claims. An appellate attorney cannot be expected to raise his
own ineffective assistance on appeal. Combs v. Coyle, 205 F.3d 269, 276 (6th Cir. 2000).
Therefore, the Court finds Petitioner has satisfied the good cause standard.
Third, Petitioner’s unexhausted claims are not plainly meritless because they
allege a violation of Petitioner’s constitutional rights that could serve as grounds for
granting a writ of habeas corpus if supported by sufficient facts. Finally, the Court finds
no indication that Petitioner is engaging in intentionally dilatory litigation tactics.
When a district court determines that a stay is appropriate pending resolution 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. To ensure that
Petitioner does not delay in exhausting his state court remedies, the Court imposes time
limits within which he must proceed. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.
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2002). Petitioner must present his claims in state court within sixty days from the date of
this Order. See id. Petitioner must also ask this Court to lift the stay within sixty days of
completing state court review. See id. “If the conditions of the stay are not met, the stay
may later be vacated nunc pro tunc as of the date the stay was entered, and the petition
may be dismissed.” Id. (internal quotation omitted).
III.
Accordingly, the Court GRANTS Petitioner’s “Motion to Stay Writ of Habeas
Corpus” (docket no. 6). The habeas petition is STAYED and further proceedings in this
matter are held in ABEYANCE. If Petitioner fails to file a motion for relief from
judgment with the state trial court within sixty days from the date of this order, the Court
will dismiss the petition for writ of habeas corpus without prejudice. Petitioner shall file
a motion to lift the stay and an amended petition in this Court within sixty days after the
conclusion of the state court proceedings.
The Court further ORDERS that, to avoid administrative difficulties, the Clerk of
Court shall close this case for statistical purposes only.

S/Victoria A. Roberts
HON. VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated: February 23, 2017

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