Keeth v. Brewer
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE. Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 17-cv-11152
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
UNITED STATES MAGISTRATE JUDGE
STEPHANIE DAWKINS DAVIS
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR
WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE
Herbert Keeth, (“Petitioner”), confined at the Cotton Correctional Facility in
Jackson, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his convictions for two counts of first-degree criminal
sexual conduct, MICH. COMP. LAWS § 750.520b(1)(A), and one count of seconddegree criminal sexual conduct, MICH. COMP. LAWS § 750.520c(1)(A). Mr. Keeth
filed a motion to hold the petition in abeyance to permit him to return to the state
courts to present additional claims that have not been exhausted with the state courts
and that are not included in his current habeas petition. Dkt. No. 3.
The 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. The Court administratively closes the case.
Petitioner was convicted following a bench trial in the Wayne County Circuit
Court. Petitioner’s conviction was affirmed on appeal. People v. Keeth, 2014 WL
6089165 (Mich. Ct. App. Nov. 13, 2014); see also 499 Mich. 982, 882 N.W. 2d 137
(2016) (denying Petitioner’s application for leave to appeal the Michigan Court of
Appeals’ November 13, 2014 judgment).
On March 22, 2017, Mr. Keeth filed his application for writ of habeas corpus.1
Petitioner seeks habeas relief on ineffective-assistance-of-counsel grounds, which
he raised in the state courts on his direct appeal. Id.
Mr. Keeth filed a motion to hold the habeas petition in abeyance so that he
can return to the state courts to raise claims that have not been exhausted with the
state courts and which are not included in the current petition.
Under the prison mailbox rule, this Court assumes that Petitioner filed his habeas
petition on March 22, 2017, the date that it was signed and dated. See Towns v. U.S.,
190 F.3d 468, 469 (6th Cir. 1999).
A federal district court is authorized to stay fully exhausted federal habeas
petitions pending the exhaustion of other claims in the state courts. See Nowaczyk v.
Warden, New Hampshire State Prison, 299 F.3d 69, 77–79 (1st Cir. 2002) (holding
that district courts should “take seriously any request for a stay.”); Anthony v.
Cambra, 236 F.3d 568, 575 (9th Cir. 2000); See also Bowling v. Haeberline, 246
F.App’x. 303, 306 (6th Cir. 2007) (holding that a court is entitled to delay deciding
a habeas petition that contains exhausted claims “when considerations of comity and
judicial economy would be served.”) (quoting Nowaczyk, 299 F.3d at 83); See also
Thomas v. Stoddard, 89 F.Supp.3d 937, 943 (E.D. Mich. 2015) (Michelson, J.).
Indeed, although there is no bright-line rule that a district court can never dismiss a
fully-exhausted habeas petition because of the pendency of unexhausted claims in
state court, in order for a federal court to justify departing from the “heavy obligation
to exercise jurisdiction,” there must be some compelling reason to prefer a dismissal
over a stay. Nowaczyk, 299 F.3d at 82; See also Bowling, 246 F.App’x. at 306
(district court erred in dismissing petition containing only exhausted claims, as
opposed to exercising its jurisdiction over petition, merely because petitioner had
independent proceedings pending in state court involving other claims).
The Court grants Petitioner’s motion to hold the petition in abeyance while he
returns to the state courts to exhaust. The outright dismissal of the petition, albeit
without prejudice, might result in preclusion of consideration of the Petitioner’s
claims in this Court due to the expiration of the one-year statute of limitations
contained in the Antiterrorism and Effective Death Penalty Act (AEDPA). See 28
U.S.C. § 2244(d)(1). A common circumstance calling for abating a habeas petition
arises when the original petition was timely filed, but a second, exhausted habeas
petition would be time barred by the AEDPA’s statute of limitations. See Hargrove
v. Brigano, 300 F.3d 717, 720–21 (6th Cir. 2002).
Other considerations merit holding the petition in abeyance while petitioner
returns to the state courts to exhaust his new claims. In particular, “the Court
considers the consequences to the habeas petitioner if it were to proceed to adjudicate
the petition and find that relief is not warranted before the state courts ruled on
unexhausted claims. In that scenario, should the petitioner subsequently seek habeas
relief on the claims the state courts rejected, he would have to clear the high hurdle
of filing a second habeas petition.” Thomas, 89 F. Supp. 3d at 942 (citing 28 U.S.C.
§ 2244(b)(2)). Moreover, “[i]f this Court were to proceed in parallel with state postconviction proceedings, there is a risk of wasting judicial resources if the state court
might grant relief on the unexhausted claim.” Id.
Other considerations merit granting a stay also. This Court is currently not in
a position to determine whether Mr. Keeth’s new claims have any merit, thus, the
Court cannot say that petitioner’s claims are “plainly meritless.” Thomas, 89 F.
Supp. 3d at 943. Nor, on the other hand, can the Court at this time say that
petitioner’s new claims plainly warrant habeas relief. Id. If the state courts deny postconviction relief, this Court would still benefit from the state courts’ adjudication of
these claims in determining whether to permit petitioner to amend his petition to add
these claims. Id. Finally, this Court sees no prejudice to respondent in staying this
case, whereas Mr. Keeth “could be prejudiced by having to simultaneously fight two
proceedings in separate courts and, as noted, if this Court were to rule before the
state courts, [petitioner] would have the heavy burden of satisfying 28 U.S.C.
§ 2244(b)(2)’s second-or-successive-petition requirements” should he seek habeas
relief on his new claims. Thomas, 89 F. Supp. 3d at 943.
However, even where a district court determines that a stay is appropriate
pending exhaustion, the district court “should place reasonable time limits on a
petitioner’s trip to state court and back.” Rhines v. Weber, 544 U.S. 269, 278 (2005).
To ensure that there are no delays by petitioner in exhausting state court remedies,
this Court imposes time limits within which petitioner must proceed with his state
court post-conviction proceedings. See Palmer v. Carlton, 276 F.3d 777, 781 (6th
The Court holds the petition in abeyance to allow Mr. Keeth to initiate postconviction proceedings in the state courts. This tolling is conditioned upon petitioner
initiating his state post-conviction remedies within ninety days of receiving this
Court’s order and returning to federal court within ninety days of completing the
exhaustion of state court post-conviction remedies. Hargrove, 300 F.3d at 721.
Petitioner’s method of properly exhausting these claims in the state courts
would be through filing a motion for relief from judgment with the Wayne County
Circuit Court under Mich. Ct. R. 6.502. See Wagner v. Smith, 581 F.3d 410, 419 (6th
Cir. 2009). 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. Mich. Ct. R. 6.509; Mich. Ct. R. 7.203; Mich. Ct. R.
7.302; Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997).
IT IS HEREBY ORDERED that the proceedings are STAYED and the
Court will hold the habeas petition in abeyance. Mr. Keeth must file a motion for
relief from judgment in state court within ninety days of receipt of this order. He
shall notify this Court in writing that such motion papers have been filed in state
court. If he fails to file a motion or notify the Court that he has done so, the Court
will lift the stay and will reinstate the original petition for writ of habeas corpus to
the Court’s active docket and will proceed to adjudicate only those claims that were
raised in the original petition. After petitioner fully exhausts his new claims, he shall
file an amended petition that includes the new claims within ninety days after the
conclusion of his state court post-conviction proceedings, along with a motion to lift
the stay. Failure to do so will result in the Court lifting the stay and adjudicating the
merits of the claims raised in Mr. Keeth’s original habeas petition.
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
Thomas, 89 F.Supp.3d at 944.
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.
Dated: May 12, 2017
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
UNITED STATES DISTRICT COURT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?