Davison v. Harry
Filing
9
OPINION and ORDER (1) Granting the 8 MOTION to Stay, (2) Holding in Abeyance the 1 Petition for Writ of Habeas Corpus, and (3) Administratively Closed the Case. Signed by District Judge Terrence G. Berg. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CLARENCE JAVON DAVISON,
Petitioner,
Case No. 2:17-CV-12125
Hon. Terrence G. Berg
v.
SHIRLEE HARRY,
Respondent,
_________________________________/
OPINION AND ORDER (1) GRANTING THE MOTION TO STAY
(Dkt. # 8), (2) HOLDING IN ABEYANCE THE PETITION FOR
WRIT OF HABEAS CORPUS, AND (3) ADMINISTRATIVELY
CLOSING THE CASE.
Clarence Javon Davison, (“petitioner”), confined at the Brooks
Correctional Facility in Muskegon Heights, Michigan, seeks the issuance
of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se
application, petitioner challenges his conviction for assault with intent to
murder, Mich. Comp. Laws § 750.83; and assault by strangulation, Mich.
Comp. Laws § 750.84(1)(b).
Petitioner has filed a motion to hold the petition in abeyance during
the pendency of his appeal from the denial of his re-sentencing in the
state trial court following a remand by the Michigan Court of Appeals.
The Court shall hold the petition in abeyance and stay the proceedings
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under the terms outlined in this opinion. Accordingly, the Court will
administratively close the case.
I. Background
Petitioner was convicted by a jury in the Genesee County Circuit
Court.
Petitioner filed an appeal of right, raising claims that are included
in his current habeas petition. The Michigan Court of Appeals affirmed
his conviction, but remanded the case to the Genesee County Circuit
Court for the judge to determine whether petitioner should be resentenced, in light of the Michigan Supreme Court’s decision in People v.
Lockridge, 498 Mich. 358; 870 N.W.2d 502 (Mich. 2015), which held that
Michigan’s Sentencing Guidelines scheme violates the Sixth Amendment
right to a jury trial. People v. Davison, No. 324479, 2016 WL 1276433
(Mich. Ct. App. Mar. 31, 2016), lv. den. 500 Mich. 868, 885 N.W.2d 272
(2016).
The trial judge on remand denied petitioner’s request to be resentenced. Petitioner has filed an appeal from the denial of his request
to be re-sentenced with the Michigan Court of Appeals, which remains
pending with that court. See People v. Davison, No. 339586 (Mich. Ct.
App.).
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Petitioner filed a petition for writ of habeas corpus, seeking habeas
relief on the four claims that he raised before the Michigan Court of
Appeals on his appeal of right.
Petitioner has filed a motion to stay the proceedings and hold the
petition in abeyance pending his appeal from the trial court’s denial of
his request to be resentenced.
II.
Discussion
A federal district court has the power to hold in abeyance 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) (a habeas court is
entitled to delay a decision in a habeas petition that contains only
exhausted claims “when considerations of comity and judicial economy
would be served”) (quoting Nowaczyk, 299 F. 3d at 83); Thomas v.
Stoddard, 89 F. Supp. 3d 937, 943 (E.D. Mich. 2015). Although there is
no 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 a compelling reason to choose a
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dismissal over a stay. Nowaczyk, 299 F. 3d at 82 (internal quotation
omitted); 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 proceeding pending in state court involving other claims).
The Court grants petitioner’s motion to hold the petition in
abeyance during the pendency of petitioner’s appeal from the denial of
his request for re-sentencing.
In so doing, “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)). Further, “[I]f
this Court were to proceed in parallel” while petitioner was pursuing his
re-sentencing appeal, “there is a risk of wasting judicial resources if the
state court might grant relief on the unexhausted claim.” Id. Respondent
will not be prejudiced by a stay, whereas petitioner “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.
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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). This Court imposes time
limits within which petitioner must proceed with his re-sentencing
proceedings. See Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002).
The Court holds the petition in abeyance during the pendency of
petitioner’s appeal from the denial of his re-sentencing in the state
courts. This tolling is conditioned upon petitioner returning to federal
court within ninety (90) days after the completion of any re-sentencing
appeal in the Michigan appellate courts.1 Hargrove v. Brigano, 300 F. 3d
717, 721 (6th Cir. 2002).
III. Conclusion
Accordingly, the Court hereby GRANTS petitioner’s motion to stay
and hold his habeas petition in abeyance. (Dkt. 8).
The case is held in
abeyance pending the completion of petitioner’s re-sentencing appeal in
the state courts. Within ninety (90) days after the conclusion of
petitioner’s appeal, petitioner may move to amend his habeas petition to
add his new claims. Otherwise, petitioner must inform the Court that he
Where an appellate court in Michigan has remanded a case for some limited
purpose following a defendant’s appeal as of right in a criminal case, a second
appeal as of right, limited to the scope of remand, lies from that decision on remand.
See People v. Kincade, 206 Mich. App. 477, 481; 522 N.W. 2d 880 (1994); See also
People v. Jones, 394 Mich. 434, 435-436; 231 N.W. 2d 649 (1975).
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will proceed with the petition as is. To avoid administrative difficulties,
the Court orders the Clerk of Court to close this case for statistical
purposes only. Nothing in this order shall be considered a disposition of
petitioner's petition. Thomas v. Stoddard, 89 F. Supp. 3d at 943-44.
SO ORDERED.
Dated: December 21, 2017
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically filed, and the
parties and/or counsel of record were served on December 21, 2017.
s/H. Monda
Case Manager
in the absence of A. Chubb
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