Russell v. Burton
OPINION AND ORDER Denying Petitioner's Request for Appointment of Counsel, Granting Petitioner's Request for a Stay and Closing this Case. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 17-11370
Paul D. Borman
United States District Judge
OPINION AND ORDER
DENYING PETITIONER’S REQUEST FOR APPOINTMENT OF
COUNSEL, GRANTING PETITIONER’S REQUEST FOR A STAY, AND
CLOSING THIS CASE
Michigan prisoner Patrick Russell recently filed a pro se petition for the writ
of habeas corpus under 28 U.S.C. § 2254. The pleading challenges Petitioner’s
plea-based convictions for second-degree murder, Mich. Comp. Laws § 750.317,
and operating a vehicle while intoxicated, causing death, Mich. Comp. Laws §
257.625(4). Petitioner alleges that the prosecutor improperly amended one of the
initial charges against him. Petitioner also alleges that his trial attorney was
ineffective. He has asked the Court to appoint counsel for him and to stay this case
while he exhausts state remedies for his claim about trial counsel. For the reasons
given below, the Court declines to appoint counsel for Petitioner, but the Court will
hold the habeas petition in abeyance while Petitioner pursues state remedies for his
Petitioner initially was charged in Macomb County, Michigan with (1)
reckless driving, causing death, and (2) operating a vehicle while intoxicated,
causing death. He waived a preliminary examination, and on March 14, 2013, he
pleaded no contest to the charges. In return, the trial court agreed to sentence
Petitioner to a minimum term of eighty-seven months (seven years, three months)
On the date set for sentencing, the trial court indicated that it could not abide
with the sentencing agreement and that it would sentence Petitioner to a minimum
In People v. Cobbs, 443 Mich. 276 (1993), the Michigan Supreme Court stated that trial judges
may participate in sentencing discussions in the following manner:
At the request of a party, and not on the judge’s own initiative, a judge may state
on the record the length of sentence that, on the basis of the information then
available to the judge, appears to be appropriate for the charged offense.
To avoid the potential for coercion, a judge must not state or imply alternative
sentencing possibilities on the basis of future procedural choices, such as an
exercise of the defendant’s right to trial by jury or by the court.
The judge’s preliminary evaluation of the case does not bind the judge’s
sentencing discretion, since additional facts may emerge during later proceedings,
in the presentence report, through the allocution afforded to the prosecutor and the
victim, or from other sources. However, a defendant who pleads guilty or nolo
contendere in reliance upon a judge’s preliminary evaluation with regard to an
appropriate sentence has an absolute right to withdraw the plea if the judge later
determines that the sentence must exceed the preliminary evaluation.
Id. at 283.
of fourteen years in prison. On the advice of counsel, Petitioner withdrew his nocontest plea. The prosecutor then moved to amend the reckless-driving charge to
second-degree murder. The trial court granted the prosecutor’s motion and
remanded the case to the state district court for a preliminary examination.
Following the examination, Petitioner was bound over to circuit court on charges
of second-degree murder and operating a vehicle while intoxicated, causing death.
On November 5, 2013, Petitioner pleaded no contest to the amended
charges, and the trial court agreed to sentence Petitioner to a minimum sentence of
twenty years. On December 11, 2013, the trial court sentenced Petitioner to prison
for twenty to forty years. Petitioner appealed, but the Michigan Court of Appeals
affirmed his convictions and sentence in an unpublished decision. See People v.
Russell, No. 323158, 2015 WL 8983893 (Mich. Ct. App. Dec. 15, 2015). On June
28, 2016, the Michigan Supreme Court denied leave to appeal because it was not
persuaded to review the issues. See People v. Russell, 499 Mich. 970 (2016)
On May 2, 2017, Petitioner filed his habeas corpus petition. The sole
argument in his habeas petition is that the trial court erred by allowing the
prosecution to amend the criminal information from reckless driving, causing
death, to second-degree murder. Petitioner alleges that this substantially increased
his sentencing exposure.
In his supporting brief, Petitioner further alleges that his trial attorney acted
unreasonably in advising him to withdraw his initial no-contest plea, which
included a sentencing agreement of fourteen years in prison. Petitioner asks for
appointment to counsel to assist him with this issue and to grant a stay while he
exhausts state remedies for his claim about trial counsel and possibly other issues.
The doctrine of exhaustion of state remedies requires state prisoners to
present all their claims to the state courts before raising the 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
part of the ordinary appellate review procedure in the State.” O’Sullivan, 526 U.S.
at 845, 847.
Petitioner raised his claim about the prosecutor’s amended charge in an
application for leave to appeal in the Michigan Court of Appeals. See Russell,
2015 WL 8983893. He alleges that he raised the same claim in the Michigan
Supreme Court, but he appears to concede that he did not raise his claim about trial
counsel in any state court. Thus, it appears that the habeas petition is a “mixed”
petition of one exhausted claim and one unexhausted claim.
A federal district court ordinarily must dismiss a “mixed” petition containing
both exhausted and unexhausted claims, “leaving the prisoner with the choice of
returning to state court to exhaust his claims or of amending or resubmitting the
habeas petition to present only exhausted claims to the district court.” Rose v.
Lundy, 455 U.S. 509, 510 (1982). However, as explained in Rhines v. Weber, 544
U.S. 269 (2005),
[t]he enactment of [the Antiterrorism and Effective Death Penalty Act
(AEDPA)] in 1996 dramatically altered the landscape for federal
habeas corpus petitions. AEDPA preserved Lundy’s total exhaustion
requirement, see 28 U.S.C. § 2254(b)(1)(A) (“An application for a
writ of habeas corpus . . . shall not be granted unless it appears that . .
. the applicant has exhausted the remedies available in the courts of
the State”), but it also imposed a 1-year statute of limitations on the
filing of federal petitions, § 2244(d) . . . .
As a result of the interplay between AEDPA’s 1-year statute of
limitations and Lundy’s dismissal requirement, petitioners who come
to federal court with “mixed” petitions run the risk of forever losing
their opportunity for any federal review of their unexhausted claims.
If a petitioner files a timely but mixed petition in federal district court,
and the district court dismisses it under Lundy after the limitations
period has expired, this will likely mean the termination of any federal
Id. at 274–75.
In light of this problem, some district courts have adopted a “stay-andabeyance” approach. Id. at 275. Under this approach, a court stays the federal
proceeding and holds the habeas petition in abeyance while the petitioner pursues
state remedies for his unexhausted claims. Id. After the state court completes its
review of the petitioner’s claims, the federal court can lift its stay and allow the
petitioner to proceed in federal court. Id. at 275-76.
[I]t likely would be an abuse of discretion for a district court to deny a
stay and to dismiss a mixed petition if the petitioner had good cause
for his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics. In such circumstances, the
district court should stay, rather than dismiss, the mixed petition. See
Lundy, 455 U.S., at 522, 102 S.Ct. 1198 (the total exhaustion
requirement was not intended to “unreasonably impair the prisoner’s
right to relief”). In such a case, the petitioner’s interest in obtaining
federal review of his claims outweighs the competing interests in
finality and speedy resolution of federal petitions.
Id. at 278.
Petitioner has not alleged “cause” for his failure to raise all his claims on
direct appeal, but there is no indication that he is engaged in intentionally dilatory
litigation tactics, and his unexhausted claim about trial counsel is not plainly
meritless. The Court therefore grants Petitioner’s request for a stay and holds the
habeas petition in abeyance while Petitioner pursues state remedies for his
unexhausted claim about trial counsel. Petitioner’s request for appointment of
counsel to assist him in that endeavor is denied.
As a condition of the Court’s stay, the Court orders Petitioner to file a
motion for relief from judgment in the state trial court within ninety (90) days of
the date of this order. If he is unsuccessful in state court and wishes to return to
this Court, he must file an amended petition and a motion to re-open this case,
using the same case number that appears on this order. The amended petition and
motion to re-open this case must be filed within ninety (90) days of the state
courts’ resolution of Petitioner’s unexhausted claim. 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).
Finally, the Court orders the Clerk of Court to close this case for
administrative purposes. Nothing in this order should be construed as an
adjudication of Petitioner’s claims.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: June 14, 2017
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 June 14, 2017.
Deborah Tofil, Case Manager
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