Stein v. Trierweiler

Filing 4

ORDER Granting 3 MOTION to Stay filed by Roger Stein and Administratively Closing Case. Signed by District Judge Arthur J. Tarnow. (DTof)

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 STAY PROCEEDINGS [Dkt. 3]
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 serving a mandatory life sentence. Petitioner’s habeas
application raises seven claims: (1) the trial court erroneously denied Petitioner’s motion for
a continuance to produce a key witness, (2) counsel was ineffective for opening the door to
admission of evidence of Petitioner’s prior offenses, (3) counsel was ineffective for failing
to present an alibi defense, (4) insufficient evidence was presented at trial to sustain
Petitioner’s convictions, (5) the trial court systematically excluded African-Americans from
the jury panel, (6) the prosecutor suppressed exculpatory evidence, and (7) appellate counsel
was ineffective for failing to present claims four, five, and six on direct appeal.
Presently before the Court is Petitioner’s motion to stay the petition (dkt. 3) so that
he can exhaust his state court remedies with respect to his fourth through seventh claims.
I. Background

Petitioner claims that following his conviction and sentence he filed a direct appeal
in the Michigan Court of Appeals. His appellate brief raised what now form his first through
third habeas claims. The Michigan Court of Appeals affirmed Petitioner’s convictions in an
unpublished opinion. People v. Stein, No. 314482 (Mich. Ct. App. Feb. 3, 2015). Petitioner
subsequently filed an application for leave to appeal in the Michigan Supreme Court. The
Michigan Supreme Court denied the application on September 9, 2015. People v. Stein, No.
151335 (Mich. Sup. Ct. Sept. 9, 2015).
Petitioner states that on September 9, 2016, he filed a motion for relief from judgment
in the trial court raising what now forms his fourth through seventh habeas claims. The trial
court has not yet ruled on the motion for relief from judgment. Petitioner requests that his
habeas petition to be stayed and held in abeyance pending exhaustion of his state court
remedies with respect to these claims.
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). 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); see also Williams v. Anderson, 460 F.3d 789, 806 (6th Cir.
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2006) (citing McMeans). 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); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
A federal district court has discretion to stay a petition raising unexhausted claims to
allow a petitioner to present those claims to the state courts and then return to federal court
on a perfected petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance
is available only in “limited circumstances” such as when the one-year statute of limitations
poses a concern, and when 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.
In the pending case, Petitioner’s unexhausted claims do not appear to be plainly
meritless, and he does not appear to be engaged in dilatory litigation tactics. He alleges good
cause for not previously exhausting his new claims because he asserts his appellate counsel
was ineffective for failing to raise them during his direct appeal. Petitioner notes that he filed
his motion for relief from judgment with only three months remaining on the one-year statute
of limitations. Dismissal of this case while Petitioner completes exhaustion of his claims
could therefore result in a subsequent petition being barred by the one-year statute of
limitations found in 28 U.S.C. § 2244(d). The Court therefore concludes that it is not an
abuse of discretion to stay this case while Petitioner completes exhaustion of his state
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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 in exhausting his state court remedies, this Court will impose upon
Petitioner 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 tolling is conditioned upon Petitioner diligently pursuing relief in the state courts
by pursuing a timely appeal in the state court of his motion for relief from judgment, and then
returning 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. Order
Accordingly, it is ORDERED that Petitioner’s motion to stay [Dkt. 3] is GRANTED.
The petition for writ of habeas corpus shall be held in abeyance pending completion of
Petitioner’s state post-conviction review proceedings. This tolling is conditioned upon
Petitioner timely appealing the denial of his motion for relief from judgment 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 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.
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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/Arthur J. Tarnow
Arthur J. Tarnow
United States District Court
Dated: August 29, 2016

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney
or party of record herein by electronic means or first class U.S. mail on August 29, 2016.

s/Deborah Tofil
Case Manager

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