Carter v. Haas
ORDER granting petitioner's motion to stay proceedings and hold petition in abeyance and administratively closing case. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number: 2:17-CV-11787
HON. GEORGE CARAM STEEH
ORDER GRANTING PETITIONER’S MOTION TO STAY
PROCEEDINGS AND HOLD PETITION IN ABEYANCE
AND ADMINISTRATIVELY CLOSING CASE
This is a habeas case under 28 U.S.C. § 2254. Petitioner Mark
Carter is a state inmate at the Macomb Correctional Facility in New Haven,
Michigan. He challenges his convictions for three counts of first-degree
criminal sexual conduct, three counts of third-degree criminal sexual
conduct, and kidnapping. Also before the Court is Petitioner’s Motion to
Stay Proceedings and Hold Petition in Abeyance. The Court grants the
Petitioner was charged with multiple sexual offenses in two cases
which were consolidated for trial. Following a jury trial in Wayne County
Circuit Court, Petitioner was convicted and sentenced as a fourth habitual
offender as follows: 37-1/2 to 75 years’ imprisonment for the kidnapping
conviction and each of the first-degree criminal sexual conduct convictions,
and 10 to 15 years for each third-degree criminal sexual conduct
convictions, all to be served concurrently.
Petitioner filed an appeal of right in the Michigan Court of Appeals,
raising three claims through counsel and additional claims in a pro per
supplemental brief. The Michigan Court of Appeals affirmed Petitioner’s
convictions. People v. Carter, Nos. 317812, 317828, 2015 WL 1214446
(Mich. Ct. App. March 17, 2015). Petitioner filed an application for leave to
appeal in the Michigan Supreme Court. In lieu of granting leave to appeal,
the court remanded the case to the trial court to determine whether it would
have imposed a materially different sentence under the sentencing
procedure described in People v. Lockridge, 498 Mich. 358 (2015). In all
other respects, the court denied leave to appeal. People v. Carter, 499
Mich. 864 (Mich. March 8, 2016). The state court’s docket indicates that
the trial court conducted a post-conviction proceeding in Petitioner’s case
on December 21, 2016. See People v. Carter, No. 12-000953-01-FC
(Wayne County Cir. Ct. Dec. 21, 2016). It is not clear, however, whether
the trial court re-sentenced Petitioner, affirmed the initial sentence, or took
some other action. Because the Court determines that a stay is
appropriate in this case, the Court need not resolve this question at this
Petitioner filed the pending habeas petition on May 30, 2017.
Petitioner also filed a motion to stay this proceeding so he may return to
state court and raise additional, unexhausted claims in state court.
State prisoners must exhaust available state remedies for each of the
claims presented in a habeas petition before seeking a federal writ of
habeas corpus. 28 U.S.C. § 2254(b)(1). Petitioner seeks a stay because,
although the claims raised in the petition are exhausted, he would like to
raise additional, unexhausted claims in state court. He states he intends to
raise numerous claims of ineffective assistance of counsel in state court.
A federal court may stay a federal habeas petition and hold further
proceedings in abeyance pending resolution of state court post-conviction
proceedings if outright dismissal of a habeas petition would jeopardize the
timeliness of a future petition, there is good cause for the petitioner’s failure
to exhaust those claims, the unexhausted claims are not “plainly meritless,”
and “there is no indication that the petitioner engaged in intentionally
dilatory litigation tactics.” Rhines v. Weber, 544 U.S. 269, 278 (2005).
The Court finds that a stay is warranted in this case. First, the
outright dismissal of the petition, even without prejudice, may preclude
future consideration of Petitioner’s claims in this court due to the expiration
of the statute of limitations. See 28 U.S.C. § 2241(d)(1). Staying a habeas
corpus proceeding is appropriate where a second, exhausted habeas
petition may be time barred by the AEDPA’s statute of limitations. See
Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002).
Second, Petitioner asserts ineffective assistance of appellate counsel
as cause for his failure to exhaust these claims. An appellate attorney
cannot be expected to raise his own ineffective assistance on appeal.
Combs v. Coyle, 205 F.3d 269, 276 (6th Cir. 2000). Therefore, the Court
finds Petitioner has satisfied the good cause standard.
Third, Petitioner’s unexhausted claims are not plainly meritless
because they allege a violation of Petitioner’s constitutional rights that
could serve as grounds for granting a writ of habeas corpus if supported by
sufficient facts. Finally, the Court finds no indication that Petitioner is
engaging in intentionally dilatory litigation tactics.
When a district court determines that a stay is appropriate pending
resolution 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 state court remedies, the Court imposes time limits within
which he must proceed. See Palmer v. Carlton, 276 F.3d 777, 781 (6th
Cir. 2002). Petitioner must present his claims in state court within sixty
days from the date of this Order. See id. Petitioner must also ask this
Court to lift the stay within sixty days of completing state court review. 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.” Id. (internal quotation omitted).
Accordingly, the Court GRANTS Petitioner’s “Motion to Stay
Proceedings and Hold Petition in Abeyance” (ECF No. 2). The habeas
petition is STAYED and further proceedings in this matter are held in
ABEYANCE. If Petitioner fails to file a motion for relief from judgment with
the state trial court within sixty days from the date of this order, the Court
will dismiss the petition for writ of habeas corpus without prejudice.
Petitioner shall file a motion to lift the stay and an amended petition in this
Court within sixty days after the conclusion of the state court proceedings.
The Court further ORDERS that, to avoid administrative difficulties,
the Clerk of Court shall close this case for statistical purposes only.
Dated: June 15, 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
June 15, 2017, by electronic and/or ordinary mail and also on
Mark Carter #215595, Macomb Correctional Facility,
34625 26 Mile Road, New Haven, MI 48048.
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