Stein v. Trierweiler

Filing 14

ORDER Granting Motion to Hold Habeas Petition in Abeyance 13 and Administratively Closing Case. Signed by District Judge Arthur J. Tarnow. (McColley, N)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROGER STEIN,
Petitioner,

Case No. 2:16-cv-13087
Hon. Arthur J. Tarnow

v.
TONY TRIERWEILER,
Respondent.
_______________________________________/
ORDER GRANTING MOTION TO HOLD HABEAS PETITION IN ABEYANCE
(Dkt. 13) AND ADMINISTRATIVELY CLOSING CASE
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner
Roger Stein (“Petitioner”) was convicted in the Jackson Circuit Court of first-degree
murder and related firearm offenses for which he is serving a mandatory life sentence.
Among the claims raised in the initial habeas petition, Petitioner asserts that his trial
counsel was ineffective for failing to call Phillip Sango as an alibi witness at trial.
Following Petitioner’s conviction, his appellate counsel filed a motion for new trial
that argued in part that his trial counsel should have called Sango at trial. A hearing was
held in the state trial court on the motion for new trial December 3, 2013, at which
Petitioner and his trial counsel testified. A second hearing date was held on March 10,
2014, at which Petitioner hoped to call Sango as a witness. Unfortunately, Sango was
murdered on December 22, 2013. Petitioner asserts in his present motion for a stay that he
had hoped to testify at the hearing that prosecution witness Winston Russell was
responsible for Sango’s murder, but when his appellate counsel started to explore this

Stein v. Trierweiler, No. 16-13087
avenue during Petitioner’s testimony, the prosecutor’s objections were sustained. See Dkt.
10-8, at 14.
Along with his initial habeas petition, Petitioner filed a first motion to stay the case
so that among other claims, he could exhaust a claim that his appellate counsel was
ineffective in the manner he dealt with Sango’s murder during the motion for new trial
hearing. The Court granted the motion, and after Petitioner exhausted his state court
remedies the case was reopened. See Dkts. 5 and 6.
Petitioner filed his present motion to stay the case on October 22, 2019. He asserts
that he learned after he completed state post-conviction review that Winston Russell has
since been arrested for Sango’s murder. The allegation is supported by a newspaper
clipping stating as much. See Dkt. 13, Exhibit B.
Winston Russell was a key prosecution witness at Petitioner’s murder trial. He
testified at trial that he saw Petitioner murder the victim. See Dkt. 10-3, at 166-169. If it is
true that Russell murdered Petitioner’s alibi witness between the two hearing dates on
Petitioner’s motion for new trial, such a fact suggests the existence of additional viable
unexhausted post-conviction claims.
A federal habeas petitioner must first exhaust all available remedies in state court.
28 U.S.C. § 2254(b). A federal court may stay a federal habeas corpus proceeding pending
resolution of state post-conviction proceedings. See Rhines v. Weber, 544 U.S. 269, 276
(2005) (“District courts do ordinarily have authority to issue stays where such a stay would
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Stein v. Trierweiler, No. 16-13087
be a proper exercise of discretion.”) (citations omitted). Rhines held that a federal court
may stay a petition for habeas corpus relief and hold further proceedings in abeyance while
a petitioner exhausts unexhausted claims if outright dismissal of the petition would
jeopardize the timeliness of a future petition, there is good cause for the petitioner’s failure
to exhaust state court remedies, the unexhausted claims are not “plainly meritless,” and
“there is no indication that the petitioner engaged in intentionally dilatory tactics.” Id. at
278.
Here, a dismissal of the petition on exhaustion grounds may create difficulties for
Petitioner with respect to the one-year statute of limitations. Petitioner alleges good cause
for not previously raising new claims regarding Sango’s murder in the state courts as
Russell was not charged with Sango’s murder until after Petitioner completed his first state
post-conviction review proceeding. The Court notes that Michigan Court Rule 6.508(G)(2)
allows a defendant to file a successive motion for relief from judgment on “a claim of new
evidence that was not discovered before the first such motion.” Claims arising out of
Russell’s murder of Sango, if indeed that allegation is true, would not be plainly meritless.
Finally, it does not appear that Petitioner is engaged in intentionally dilatory tactics.
Accordingly, the Court holds the petition in abeyance. Petitioner must exhaust any
new claims arising out of the allegation that Winston Russell murdered Phillip Sango in
state court by filing a motion for relief from judgment in the Jackson Circuit Court within
60 days of the date of this order, and then if it is denied, he must file timely appeals in the
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Stein v. Trierweiler, No. 16-13087
Michigan Court of Appeals and Michigan Supreme Court. See e.g. Wagner v. Smith, 581
F. 3d 410, 419 (6th Cir. 2009). Further, he must ask this Court to lift the stay within 60
days of exhausting his state court remedies. Failure to comply with any of the conditions
of the stay could result in the dismissal of the habeas petition. Calhoun v. Bergh, 769 F.3d
409, 411 (6th Cir. 2014).
It is ORDERED that the motion to stay is GRANTED and the petition for writ of
habeas corpus shall be stayed and held in abeyance pending Petitioner’s state postconviction review proceeding.
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).

_s/Arthur J. Tarnow___________
Arthur J. Tarnow
United States District Court
Dated: January 29, 2020__

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