Simpson v. Barrett

Filing 9

OPINION AND ORDER GRANTING PETITIONERS MOTION TO STAY, STAYING PROCEEDINGS, AND ADMINISTRATIVELY CLOSING CASE. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CEDRIC SIMPSON, #227605,
Petitioner,
v.

CASE NO. 16-CV-13909
HONORABLE GERSHWIN A. DRAIN

JOSEPH BARRETT,
Respondent.
/
OPINION AND ORDER GRANTING PETITIONER’S MOTION TO STAY,
STAYING PROCEEDINGS, AND ADMINISTRATIVELY CLOSING CASE
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner
Cedric Simpson (“Petitioner”) was convicted of surveilling an unclothed person and
defrauding an innkeeper in the Macomb County Circuit Court and was sentenced as
a third habitual offender to concurrent terms of five to 10 years imprisonment and
90 days in jail in 2013. In his petition, he raises a claim concerning the conduct of
the prosecutor in eliciting a police officer’s opinion testimony. Respondent has not
yet filed an answer to the petition or the state court record. Those materials are due
in February, 2017. This matter is now before the Court on Petitioner’s motion to
stay the proceedings and hold his habeas petition in abeyance so that he can return
to state court to exhaust remedies on additional claims concerning the pre-trial

identification procedures and his identification at trial, the admission of his mugshot,
and the validity of his sentence.
The doctrine of exhaustion of state remedies requires state prisoners to “fairly
present” their claims as federal constitutional issues in the state courts before raising
those claims in a federal habeas petition. 28 U.S.C. § 2254(b)(1)(A) and (c);
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); McMeans v. Brigano, 228 F.3d
674, 681 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Federal law
provides that a habeas petitioner is only entitled to relief if he can show that the state
court adjudication of his claims resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d). The
state courts must be given an opportunity to rule upon all of a petitioner’s claims
before he can present those claims on habeas review. Otherwise, a federal court is
unable to apply the standard found at 28 U.S.C. § 2254.
The exhaustion requirement is met if a prisoner invokes one complete round
of the state’s established appellate review process. O'Sullivan, 526 U.S. at 845. To
satisfy the exhaustion requirement, the claims must be “fairly presented” to the state
courts, meaning that the petitioner must have asserted both the factual and legal
bases for the claims in the state courts. McMeans, 228 F.3d at 681; see also Williams
v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). The claims must

also be presented to the state courts as federal constitutional issues. Koontz v.
Glossa, 731 F.2d 365, 368 (6th Cir. 1984). For a Michigan prisoner, each issue must
be presented to both the Michigan Court of Appeals and the Michigan Supreme
Court. Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Welch v. Burke, 49 F.
Supp. 2d 992, 998 (E.D. Mich. 1999). The burden is on the petitioner to prove
exhaustion. Rust, 17 F.3d at 160.
The Michigan Rules of Court provide a process through which Petitioner may
raise his unexhausted claims. In fact, Petitioner states that he intends to file a motion
for relief from judgment in the state trial court pursuant to Michigan Court Rule
6.500 et seq. He may then appeal the trial court’s decision to the state appellate
courts as necessary. The unexhausted claims should first be addressed to, and
considered by, the Michigan courts.
A federal district court has discretion to stay a habeas petition to allow a
petitioner to present unexhausted claims to the state courts in the first instance and
then return to federal court on a perfected petition. 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 applicable to federal habeas actions poses a
concern, and when the petitioner demonstrates “good cause” for the failure to
exhaust state court remedies before proceeding in federal court, the unexhausted

claims are not “plainly meritless,” and the petitioner has not engaged in intentionally
dilatory tactics. Id. at 277.
In this case, Petitioner shows the need for a stay. He wishes to pursue new
claims which have not been presented to the state courts. The one-year limitations
period applicable to federal habeas actions, 28 U.S.C. § 2244(d)(1), could pose a
problem if the court were to dismiss the petition to allow for further exhaustion of
state remedies. Additionally, Petitioner seeks to present new issues and alleges that
appellate counsel was ineffective for failing to previously present them to the state
courts, which may provide good cause. Lastly, at least some of the unexhausted
claims do not appear to be plainly meritless and there is no evidence of intentional
delay. Therefore, the Court shall stay the proceedings and hold the exhausted claim
in the current petition in abeyance pending Petitioner’s pursuit of state court
remedies as to any unexhausted claims. The Court make no determination as to the
timeliness of any claims or the procedural or substantive merits of any claims.
Accordingly, the Court GRANTS Petitioner’s motion to stay the proceedings
and hold the habeas petition in abeyance. These proceedings are stayed. The stay
is conditioned on Petitioner presenting the unexhausted claims to the state courts
within 60 days of the date of this order by filing a motion for relief from judgment
with the trial court. See Hill v. Anderson, 300 F.3d 679, 683 (6th Cir. 2002)
(discussing procedure). The stay is further conditioned on Petitioner’s return to this

Court with a motion to reopen and amend the petition, using the same caption and
case number, within 60 days of fully exhausting state remedies. See Palmer v.
Carlton, 276 F.3d 777, 781 (6th Cir. 2002) (adopting approach taken in Zarvela v.
Artuz, 254 F.3d 374, 381 (2d Cir. 2001)). Should Petitioner fail to comply with these
conditions, the case may be dismissed. Lastly, the case is closed for administrative
purposes pending compliance with these conditions.
IT IS SO ORDERED.

/s/Gershwin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: December 19, 2016

I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, December 19, 2016, by electronic and/or ordinary mail.

/s/Tanya Bankston
Case Manager, [phone]