Morrell v. McCullick

Filing 16

OPINION and ORDER Granting 9 MOTION to Amend the Habeas Petition, holding in abeyance the Petition for Writ of Habeas corpus and Administratively Closing the Case. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RONALD MORRELL,
Petitioner,
v.

Civil No. 17-CV-10961
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

MARK McCULLICK,
Respondent.
______________________/
OPINION AND ORDER (1) GRANTING THE MOTION
TO AMEND THE HABEAS PETITION, (2) HOLDING IN
ABEYANCE THE PETITION FOR WRIT OF HABEAS
CORPUS AND (3) ADMINISTRATIVELY CLOSING THE CASE
Ronald Morrell, (“Petitioner”), filed a pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for one
count of armed robbery, Mich. Comp. Laws § 750.529; four counts of
unlawful imprisonment, Mich. Comp. Laws § 750.349b; one count of
first-degree home invasion, Mich. Comp. Laws § 750.110a(2); one count of
larceny of a firearm, Mich. Comp. Laws § 750.357b; one count of larceny in
a building, Mich. Comp. Laws § 750.360; five counts of felonious assault,
Mich. Comp. Laws § 750.82; and thirteen counts of felony firearm, Mich.
Comp. Laws § 750.227b.

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Petitioner has also filed several lengthy pleadings in addition to his
original petition, which are construed as a motion to amend the habeas
petition to add additional claims. The motion to amend the petition is
GRANTED. The amended petition appears to raise new claims that have
yet to be exhausted with the state courts. In lieu of dismissing the petition
without prejudice, this Court holds the petition in abeyance and stays the
proceedings under the terms outlined in this opinion to permit petitioner to
return to the state courts to exhaust his additional claims. If this fails, the
petition will be dismissed without prejudice.
I. Background
Petitioner pleaded nolo contendere in the Livingston County Circuit
Court and was sentenced to prison. Petitioner’s conviction and sentence
were affirmed on appeal. People v. Morrell, No. 330591 (Mich.Ct.App. Mar.
29, 2016); lv. den. 500 Mich. 868 (2016).
Petitioner filed a petition for writ of habeas corpus, seeking relief on
the following grounds:
I. Trial court violated constitutional due process by refusal to
allow plea withdrawal.
II. Petitioner’s sentencing range was incorrectly scored.
III. Inaccurate and biased pre-sentencing report which
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prejudices Petitioner.
II. Discussion
A. The motion to amend the petition for writ of habeas corpus is
GRANTED.
Petitioner has filed several pleadings in addition to his original
habeas petition. (Docs. # 6, 8, 9, 10, and 11). These pleadings all contain
lengthy factual allegations and legal arguments by petitioner that not only
buttress the three claims raised by petitioner in his initial petition, but also
appear to advance new claims. Petitioner appears to be raising the
following claims in these pleadings: (1) Petitioner’s confession was
involuntary because he was under the influence of drugs, was denied
medical care, and the police threatened to kill his wife and children, (2)
prosecutorial misconduct, (3) the police and prosecutor brought false
charges against petitioner, (4) petitioner was forced by his trial counsel into
pleading nolo contendere, (5) ineffective assistance of trial counsel, in that
counsel failed to locate evidence of petitioner’s innocence, (6) trial counsel
had a conflict of interest with petitioner in that he was working in collusion
with the prosecutor and police, (7) ineffective assistance of appellate
counsel, (8) the judge conspired with the police, and (9) transcripts of the
proceedings were altered or falsified.
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Petitioner did not separately list all of these claims for relief in his
original petition, as required by Rule 2© of the Rules Governing § 2254
Cases, 28 U.S.C. foll. § 2254. However, the appropriate liberal
construction of a pro se habeas petition, even though it is vague and
conclusory, requires active interpretation in some cases to construe a pro
se petition to encompass any allegation which may state a ground for
federal relief. See Franklin v. Rose, 765 F. 2d 82, 84-85 (6th Cir. 1985). A
habeas petitioner’s “undeveloped allegations” of constitutional error may be
sufficient to alert a district court to the petitioner’s intention to raise
additional claims. Id., at 85.
Petitioner’s lengthy and detailed pleadings raise several new claims
alleging serious constitutional error. These are not passing references to
possible constitutional violations but extended and repeated allegations by
petitioner concerning these new claims. This Court is willing to construe
these pleadings as a motion to amend the petition to add these new claims.
The proposed amended habeas petition should be granted because it
advances new claims that may have arguable merit. See e.g. Braden v.
United States, 817 F.3d 926, 930 (6th Cir. 2016).
B. The Court will hold the petition in abeyance to permit
petitioner to exhaust these new claims.
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Petitioner’s amended petition contains several claims that have not
been exhausted with the state courts.
As a general rule, a state prisoner who seeks federal habeas relief
must first exhaust his or her available state court remedies before raising a
claim in federal court. 28 U.S.C. § 2254(b) and (c). See Picard v. Connor,
404 U. S. 270, 275-78 (1971). Although exhaustion is not a jurisdictional
issue, “it is a threshold question that must be resolved” before a federal
court can reach the merits of any claim contained in a habeas petition. See
Wagner v. Smith, 581 F. 3d 410, 415 (6th Cir. 2009). Therefore, each
claim must be reviewed by a federal court for exhaustion before any claim
may be reviewed on the merits by a federal court. Id. Federal district
courts normally must dismiss mixed habeas petitions which contain both
exhausted and unexhausted claims. See Pliler v. Ford, 542 U.S. 225, 230
(2004)(citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). A habeas
petitioner has the burden of proving that he or she exhausted his or her
claims with the state courts. See Caver v. Straub, 349 F.3d 340, 345 (6th
Cir. 2003).
A habeas petitioner’s failure to exhaust his or her state court
remedies does not deprive a federal court of its jurisdiction to consider the

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merits of the habeas petition. Granberry v. Greer, 481 U.S. 129, 131
(1987). An unexhausted claim may be adjudicated if the unexhausted
claim is without merit, such that addressing the claim would be efficient and
would not offend the interest of federal-state comity. Prather v. Rees, 822
F. 2d 1418, 1422 (6th Cir. 1987); see also 28 U.S.C. § 2254(b)(2)(habeas
petition may be denied on the merits despite the failure to exhaust state
court remedies). However, “In determining whether a claim is ‘plainly
meritless,’ principles of comity and federalism demand that the federal
court refrain from ruling on the merits of the claim unless ‘it is perfectly
clear that the petitioner has no hope of prevailing.’” Dixon v. Baker, 847 F.
3d 714, 722 (9th Cir. 2017)(quoting Cassett v. Stewart, 406 F. 3d 614, 624
(9th Cir. 2005)). “A contrary rule would deprive state courts of the
opportunity to address a colorable federal claim in the first instance and
grant relief if they believe it is warranted.” Id. (quoting Cassett, 406 F. 3d at
624).
In Wagner v. Smith, 581 F. 3d at 414, the Sixth Circuit addressed a
habeas petition involving several unexhausted claims that had been
rejected on the merits by another judge in this district. The Sixth Circuit
remanded the matter back to the district court. Although the Sixth Circuit

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discussed the four available options for addressing a habeas petition which
contained unexhausted claims, including the option of denying the
unexhausted claims on the merits, Id. at 419 (discussing the four options),
the Sixth Circuit strongly suggested that the district court should consider
staying the petition and holding it in abeyance to permit petitioner to return
to the state courts to properly exhaust these claims, because the claims
were not “plainly meritless.” Id. at 419-20. On remand, the district court
vacated its opinion and order denying petitioner habeas relief, held the
petition in abeyance to permit petitioner to return to the state courts to
exhaust his claims, and administratively closed the case. Wagner v. Smith,
U.S.D.C. 2:06-CV-10514 (E.D. Mich. Nov. 13, 2009).
The Sixth Circuit recently again reversed another judge in this district
for rejecting an unexhausted ineffective assistance of counsel claim on the
merits. See Hickey v. Hoffner, No. 16-1186, 2017 WL 2829523,
__ F. App’x. __ (6th Cir. June 30, 2017). Although agreeing with the district
court that the claims were unexhausted, the Sixth Circuit ruled that they
could not find petitioner’s ineffective assistance of counsel claims to be
plainly meritless, so as to deny relief on the merits, because petitioner
raised a “colorable” ineffective assistance of counsel claim. Id., at * 3-4.

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The Sixth Circuit vacated the district court decision denying habeas relief
and remanded the matter to the district court to determine whether the
petition should be held in abeyance. Id.
This Court cannot categorically state that petitioner has absolutely no
hope of prevailing on these claims either in the state courts or in the federal
court. Because this unexhausted claims have “not yet been fully
developed, it would be premature for the Court to assess their merits.”
Adams v. Haas, No. 15-11685, 2017 WL 264506, at *2 (E.D. Mich. Jan. 20,
2017).
Petitioner could exhaust these claims by filing a post-conviction
motion for relief from judgment with the Livingston County Circuit Court
under M.C.R. 6.502. Denial of a motion for relief from judgment is
reviewable by the Michigan Court of Appeals and the Michigan Supreme
Court upon the filing of an application for leave to appeal. M.C.R. 6.509;
M.C.R. 7.203; M.C.R. 7.302. See Nasr v. Stegall, 978 F. Supp. 714, 717
(E.D. Mich. 1997).1
A habeas petitioner who is concerned about the possible effects of
his state post-conviction filings on the Antiterrorism and Effective Death
1

To the extent that petitioner claims that the Livingston County Circuit judge is biased, he could
always move for the judge to be recused from hearing his post-conviction motion pursuant to M.C.R.
2.003.

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Penalty Act’s statute of limitations could file a “protective” petition in federal
court and then ask for the petition to be held in abeyance pending the
exhaustion of state post-conviction remedies. See Pace v. DiGuglielmo,
544 U.S. 408, 416 (2005)(citing Rhines v. Weber, 544 U.S. 269 (2005)). A
federal court may stay a federal habeas petition and hold further
proceedings in abeyance pending resolution of state court post-conviction
proceedings, if there is good cause for failure to exhaust and the
unexhausted claims are not “plainly meritless.” Rhines, 544 U.S. at 278.
Petitioner’s claims do not appear to be “plainly meritless.” Wagner v
Smith, 581 F. 3d at 419. Petitioner may assert that he did not previously
raise these claims in the state courts due to the ineffective assistance of
appellate counsel. Wagner, 581 F. 3d at 419, nn. 4 and 5. Finally, it does
not appear that petitioner has engaged in “intentionally dilatory tactics.”2
When 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. To ensure that petitioner does not delay in exhausting his
2

Although the Sixth Circuit in Wagner, 581 F. 3d at 419-20 believed that the unexhausted claims
were not plainly meritless, so as to justify holding the case in abeyance to permit petitioner to exhaust
these claims, the Sixth Circuit affirmed the denial of habeas relief on these same claims when the case
came before that court again after petitioner exhausted these claims. See Wagner v. Klee, 620 F. App’x.
375, 377 (6th Cir. 2015). This indicates that the threshold for a claim to rise above the “plainly meritless'
standard is fairly low.

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state court remedies, the Court imposes upon petitioner time limits within
which he must proceed. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.
2002). Petitioner must present his claim or claims in state court by filing a
post-conviction motion for relief from judgment with the state trial court
within sixty days from the date of this Order. See id. Further, he must ask
this Court to lift the stay within sixty days of exhausting his state court
remedies. See id. “If the conditions of the stay are not met, the stay may
later be vacated nunc pro tunc as of the date the stay was entered, and the
petition may be dismissed.” Palmer, 276 F. 3d at 781 (internal quotation
omitted).3
III. ORDER
Accordingly, IT IS ORDERED that the motion to amend the petition is
GRANTED.
IT IS FURTHER ORDERED that petitioner may file a motion for relief
from judgment with the state court within sixty (60) days of receipt of this
Court’s order. If petitioner fails to file a motion for relief from judgment with
the state courts by that date, the Court will dismiss the present petition
without prejudice.
3

This Court has the discretion to stay the petition and hold it in abeyance even though petitioner
did not specifically request this Court to do so. See e.g. Banks v. Jackson, 149 F. App’x. 414, 422, n. 7
(6th Cir. 2005).

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If petitioner files a motion for relief from judgment, he shall notify this
Court that such motion papers have been filed in state court. The case
shall then be held in abeyance pending the petitioner’s exhaustion of the
claim or claims.
Petitioner shall re-file his habeas petition within 60 days after the
conclusion of the state court post-conviction proceedings. Petitioner is free
at that time to file an amended habeas petition which contains any newly
exhausted claims.
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).
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.

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Dated: November 16, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 16, 2017, by electronic and/or ordinary mail and
also on Ronald Morrell #955782, St. Louis Correctional
Facility, 8585 N. Croswell Road, St. Louis, MI 48880.
s/Barbara Radke
Deputy Clerk

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