Romaya v. Winn

Filing 9

ORDER GRANTING PETITIONERS REQUEST FOR A STAY 8 , DENYING AS MOOT PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL 7 , AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROD PATROS ROMAYA,
Case No. 16-cv-14118
Petitioner,
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
TOM WINN,

UNITED STATES MAGISTRATE JUDGE
MONA K. MAJZOUB

Respondent.
/
ORDER GRANTING PETITIONER’S REQUEST FOR A STAY [8],
DENYING AS MOOT PETITIONER’S MOTION FOR APPOINTMENT OF COUNSEL [7],
AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES
I. INTRODUCTION
This is a habeas corpus case under 28 U.S.C. § 2254. Michigan prisoner Rod
Patros Romaya (“Petitioner”) challenges his Macomb County convictions for two
counts of first-degree criminal sexual conduct (CSC), see MICH. COMP. LAWS
§ 750.520b, and three counts of second-degree CSC, see MICH. COMP. LAWS
§ 750.520c. Petitioner was sentenced to concurrent prison terms of 262 to 444
months for each first-degree CSC conviction and 120 to 270 months in prison for
each second-degree CSC conviction.
In his pro se habeas corpus petition, Petitioner asserts as grounds for relief
that (1) he was denied his right to represent himself at trial, (2) he was denied his
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right to counsel when the trial court denied his request for substitute counsel, (3) he
was denied a fair trial by the admission of evidence that he went to another country
before being charged, (4) his constitutional rights were violated by judicial factfinding that increased his sentence, (5) his right to a fair trial was violated because
he was forced to wear leg irons during trial, (6) he was denied effective assistance
of counsel and the right to testify by counsel’s fraud on the court and extortion, and
(7) he was denied effective assistance of counsel by counsel’s inadequate
investigations and pretrial preparations, failure to present a substantive defense,
and inadequate cross-examination. Dkt. No. 1, pp. 6–11C (Pg. ID 6-15). This
matter is presently before the Court on Petitioner’s motion for appointment of
counsel [7] and request for a stay of these proceedings [8].
II. BACKGROUND
Petitioner’s convictions arose from allegations that he sexually abused his
underage daughter. He was tried before a jury in Macomb County Circuit Court
and convicted as charged. Petitioner appealed as of right, but the Michigan Court
of Appeals affirmed his convictions and sentence in an unpublished decision. See
People v. Romaya, No. 319388, 2015 WL 1739970 (Mich. Ct. App. Apr. 16,
2015). On October 28, 2015, the Michigan Supreme Court reversed the Michigan
Court of Appeals in part and remanded the case to the Macomb County Circuit

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Court “to determine whether the court would have imposed a materially different
sentence under the sentencing procedure described in People v. Lockridge, 498
Mich. 358 (2015).” People v. Romaya, 498 Mich. 903; 870 N.W.2d 572 (2015).
The state supreme court denied leave to appeal in all other respects, see id., and it
appears that, on remand, the trial court declined to re-sentence Petitioner.
On November 18, 2016, Petitioner filed his habeas corpus petition. On
January 25, 2017, Petitioner moved for appointment of counsel, Dkt. No. 7, and
also asked the Court to hold his habeas petition in abeyance until the conclusion of
proceedings on his motion for relief from judgment in state court, Dkt. No. 8.
III. DISCUSSION
Petitioner has not provided the Court with any information about his pending
or anticipated motion for relief from judgment, but the Court assumes that he
intends to pursue state remedies for claims that he has not already raised in state
court. The doctrine of exhaustion of state remedies requires state prisoners to
present all their claims to the state courts before raising their claims in a federal
habeas corpus petition. See 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526
U.S. 838, 842 (1999). This requirement is satisfied if the prisoner “invok[es] one
complete round of the State’s established appellate review process,” including a
petition for discretionary review in the state supreme court, “when that review is

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part of the ordinary appellate review procedure in the State.” O’Sullivan, 526 U.S.
at 845, 847. Consequently, to be properly exhausted, each claim must have been
fairly presented to the state court of appeals and to the state supreme court. Wagner
v. Smith, 581 F.3d 410, 414 (6th Cir. 2009).
A dismissal of this case while Petitioner attempts to exhaust state remedies
could preclude future consideration of Petitioner’s claims due to the expiration of
the one-year statute of limitations for filing a habeas petition. See 28 U.S.C.
§ 2244(d). In similar circumstances, some courts have adopted a “stay-andabeyance” approach. Rhines v. Weber, 544 U.S. 269, 275 (2005). Under this
approach a court stays the federal proceedings and holds the habeas petition in
abeyance while the inmate pursues state remedies for his unexhausted claims. Id.
After the state court completes its review of the inmate’s claims, the federal court
can lift its stay and allow the inmate to proceed in federal court. Id. at 275-76.
Federal district courts ordinarily have authority to issue stays, id. at 276, and
it likely would be an abuse of discretion for a district court to deny a stay and to
dismiss a petition for failure to exhaust state remedies when the petitioner has good
cause for his failure to exhaust state remedies, his unexhausted claims are
potentially meritorious, and there is no indication that he is engaged in
intentionally dilatory litigation tactics. Id. at 278. The petitioner’s interest in

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obtaining federal review of his claims in those circumstances “outweighs the
competing interests in finality and speedy resolution of federal petitions.” Id.
Here, Petitioner has not alleged “good cause” for his failure to exhaust state
remedies before filing his habeas petition and the Court is unable to say whether
any unexhausted claims are potentially meritorious, because Petitioner has not
enumerated the claims that he seeks to raise on post-conviction relief in state court.
On the other hand, Petitioner does not appear to be engaged in intentionally
dilatory litigation tactics, and he apparently has an available remedy to exhaust: a
motion for relief from judgment under subchapter 6.500 of the Michigan Court
Rules. Furthermore, the one-year statute of limitations likely will expire if the
Court denies Petitioner’s request for a stay and dismisses his case without
prejudice so that Petitioner can pursue state remedies.
IV. CONCLUSION
Accordingly, IT IS ORDERED that Petitioner’s request for a stay and to
have his habeas petition held in abeyance [Dkt. No. 8] is GRANTED.
IT IS FURTHER ORDERED that Petitioner shall file a motion for relief
from judgment, if he has not already done so, within sixty (60) days of the date of
this order. If he is unsuccessful in state court, he may return to this Court and file
an amended habeas corpus petition and a motion to re-open this case, using the

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same case number that appears on this order. An amended petition and motion to
re-open this case must be filed within sixty (60) days of exhausting state remedies
for any new or unexhausted claims. Failure to comply with the conditions of this
stay could result in the dismissal of this case. Calhoun v. Bergh, 769 F.3d 409, 411
(6th Cir. 2014), cert. denied, 135 S. Ct. 1403 (2015).
IT IS FURTHER ORDERED that the Clerk of the Court shall close this
case for administrative purposes. This administrative closing shall not be construed
as a dismissal or an adjudication of Petitioner’s exhausted claims.
IT IS FURTHER ORDERED that Petitioner’s motion for appointment of
counsel [Dkt. No. 7] is DENIED as moot.
IT IS SO ORDERED.
Dated:

February 6, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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