Margosian v. Mackie

Filing 7

ORDER GRANTING MOTION FOR A SECOND STAY OF COURT [#4] AND GRANTING MOTION FOR IMMEDIATE CONSIDERATION [#5]. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTIAN MARGOSIAN,
Petitioner,

Case No. 16-cv-13056

v.

UNITED STATES DISTRICT COURT
JUDGE
GERSHWIN A. DRAIN

THOMAS MACKIE,
Respondent.
______________________________/

ORDER GRANTING MOTION FOR A SECOND STAY OF COURT [#4]
AND GRANTING MOTION FOR IMMEDIATE CONSIDERATION [#5]
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner
Christian Margosian (“Petitioner”) was convicted in the Macomb Circuit Court of
multiple felony offenses, the most serious of which was indecent exposure by a
sexually delinquent person. MICH. COMP. LAWS § 750.335(a)(2); Dkt. No. 1, pg. 2
(Pg. ID 2). Petitioner received a string of concurrent sentences, the longest of which
is 15 to 30 years for the indecent exposure offense. See id.
Petitioner’s habeas application raises seven claims: (1) Petitioner’s
convictions are based on insufficient evidence; (2) Petitioner’s defense was
prejudiced by an intentional pre-indictment delay; (3) Petitioner was denied the
effective assistance of counsel; (4) the charge of being a sexually delinquent person
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was overbroad in relation to Petitioner’s conduct; (5) the charges were improperly
joined for trial; (6) the trial court erroneously admitted prior bad acts AS evidence;
and (7) Petitioner was improperly sentenced as a sexually delinquent person. Id. at
pgs. 12–33 (Pg. ID 12–33).
Petitioner presented his fifth through seventh habeas claims to the state courts
on direct appeal. That proceeding ended on December 30, 2014, when the Michigan
Supreme Court denied Petitioner’s motion for reconsideration following its denial
of leave to appeal. See Dkt. No. 3, pg. 2 (Pg. ID 53).
On August 22, 2016, Petitioner filed a motion to stay proceedings along with
his habeas petition so that he could present what now form his first through fourth
habeas claims to the state courts before proceeding on federal habeas review. Dkt.
No. 2. On August 25, 2016, this Court granted the motion and gave Petitioner 60
days to file for state post-conviction review. See Dkt. No. 3.This Court also gave
Petitioner 60 days following completion of review to file a motion to reopen his
habeas case. Id.
Presently before the Court is Petitioner’s Motion for a Second Stay (Dkt. No.
4) and his Motion for Immediate Consideration (Dkt. No. 5). Petitioner seeks a
second stay so that he can present newly discovered evidence to the state courts in a
second post-conviction review proceeding. Dkt. No. 4, pg 4 (Pg. ID 61). Petitioner’s
Motion claims that during the pendency of his state post-conviction review
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proceeding, he discovered new evidence in the form of cell phone records that he
claims prove that a key prosecution witness–a police detective–lied at his trial. Id. at
pg. 3–4 (Pg. ID 60–61).
For the reasons stated in this Court’s prior order staying this case, the Court
will grant Petitioner’s Motion for a Second Stay. As before, this second stay is
conditioned upon Petitioner diligently pursuing relief in the state courts by pursuing
a properly filed second motion for relief from judgment in the trial court within sixty
(60) days of this order. Further, Petitioner must timely appeal any denial of that
motion through the state appellate courts. If Petitioner’s state appeal is unsuccessful,
he must return to federal court within sixty (60) days of completing his state postconviction review proceeding by filing a motion to reopen this case along with an
amended petition. See Hargrove v. Brigano, 300 F.3d 717, 718 (6th Cir. 2002).
Accordingly, it is ORDERED that Petitioner’s Motion for a Second Stay
[Dkt. No. 4] and Motion for Immediate Consideration [Dkt. No. 5] are GRANTED.
The petition for writ of habeas corpus shall be held in abeyance pending completion
of Petitioner’s second state post-conviction review proceeding. This tolling is
conditioned upon Petitioner filing his second motion for relief from judgment within
sixty (60) days of this order. Petitioner must also file a motion to reopen his case and
an amended petition—using the case number already assigned to this case—within
sixty (60) days after the conclusion of the state post-conviction proceedings.
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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
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.

SO ORDERED.

Dated:

June 4, 2018
s/Gershwin A. Drain
Hon. Gershwin A. Drain
United States District Court Judge

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