Arellano v. Stewart

Filing 8

ORDER DISMISSING CASE NUMBER 2:17-CV-12133, GRANTING THE MOTION FOR A STAY IN CASE NUMBER 2:17-CV-12206, AND CLOSING CASE NUMBER 2:17-CV-12206. Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DIANE ARELLANO,
Petitioner,

Case No. 2:17-cv-12133

V.

UNITED STATES DISTRICT JUDGE
GERSHWIN A. DRAIN

ANTHONY STEWART,
UNITED STATES MAGISTRATE JUDGE
PATRICIA T. MORRIS

Respondent.
___________________________________/
DIANE ARELLANO,
Petitioner,

Case No. 2:17-cv-12206

V.

UNITED STATES DISTRICT JUDGE
GERSHWIN A. DRAIN

ANTHONY STEWART,
UNITED STATES MAGISTRATE JUDGE
PATRICIA T. MORRIS

Respondent.
__________________________________/

ORDER DISMISSING CASE NUMBER 2:17-CV-12133,
GRANTING THE MOTION FOR A STAY IN CASE NUMBER 2:17-CV-12206,
AND CLOSING CASE NUMBER 2:17-CV-12206
I. INTRODUCTION
These matters come before the Court on two habeas corpus cases filed by
Diane Arellano (“Arellano” or “Petitioner”). On June 28, 2017, Petitioner filed a
“Memorandum of Law in Support of Motion to Expand Record.” Arellano v.

Stewart, 17-cv-12133, (E.D. Mich. Jun. 28, 2017), Dkt. No. 1 (“Arellano I”).
Because the memorandum appeared to challenge Petitioner’s first-degree murder
conviction, the memorandum was treated as a habeas corpus petition and assigned
case number 2:17-cv-12133.
On June 30, 2017, Arellano filed a habeas corpus petition, along with the filing
fee and a motion for a stay. Arellano v. Stewart, 17-cv-12206, (E.D. Mich. June 30,
2017), Dkt. Nos. 1–3 (“Arellano II”). This petition was treated as a new case and
assigned case number 2:17-cv-12206.
In her habeas petition, Arellano outlines that in 2014 she was convicted of
first-degree murder and possession of a firearm during the commission of a felony,
and sentenced to life imprisonment without the possibility of parole. Id. at Dkt. No.
1 (Pg. ID 1). The Michigan Court of Appeals affirmed her convictions, see People
v. Arellano, No. 322886, 2015 WL 7370072 (Mich. Ct. App. Nov. 19, 2015), and on
June 28, 2016, the Michigan Supreme Court denied leave to appeal. See People v.
Arellano, 499 Mich. 969, 880 N.W.2d 578 (Mich. 2016).
Arellano’s habeas petition contains only one ground for relief: that the officer
in charge of her state criminal case improperly invaded the province of the jury.
Arellano II, 17-cv-12206, Dkt. No. 1, p. 5 (Pg. ID 5). On May 29, 2017, however,
Petitioner allegedly filed a motion for relief from judgment in the state courts in
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which she raised several claims regarding her trial and her appellate attorneys, and
the police and prosecutor. Id. at p. 7 (Pg. ID 7). She also asserted her innocence as
to the crimes for which she is incarcerated. Id. at p. 3 (Pg. ID 3). The state trial
court denied Petitioner’s motion, and her appeal from the trial court’s decision is
pending in the Michigan Court of Appeals. Id. at pp. 3–4 (Pg. ID 3–4). In Arellano’s
motion for a stay presently before the Court, she asks the Court to hold her petition
in abeyance until the state courts have concluded their review of her post-conviction
motion. Id. at Dkt. No. 2, p. 1–2 (Pg. ID 1–2).
II. DISCUSSION
The doctrine of exhaustion of state remedies requires state prisoners to give
state courts an opportunity to act on their claims before they present their claims in
a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A); 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. Thus, to properly exhaust state remedies, a prisoner must fairly
present the factual and legal basis for each of his or her claims to the state court of
appeals and state supreme court before raising the claims in a habeas corpus petition.
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Wagner v. Smith, 581 F.3d 410, 414–15 (6th Cir. 2009). A federal court ordinarily
must dismiss a habeas petition that contains a claim not exhausted in the state courts.
Rose v. Lundy, 455 U.S. 509, 510 (1982).
Petitioner seems to have exhausted state remedies for the claim regarding the
officer in charge of her case, but she seeks to raise additional claims in an amended
petition. She intends to file the amended petition as soon as the state courts have
concluded their review of her post-conviction motion. Dismissing Arellano’s habeas
petition as she continues to seek state remedies for new claims could result in a bar
of a subsequent petition pursuant to the one-year statute of limitations, enacted after
the decision in Rose. See 28 U.S.C. § 2244(d) (effective April 24, 1996).
To resolve this tension between the total exhaustion rule and the one-year
statute of limitations, the Supreme Court has approved a “stay-and-abeyance”
procedure for cases with a “mixed” petition of exhausted and unexhausted claims.
See Rhines v. Weber, 544 U.S. 269, 275–77 (2005). Under this procedure, a district
court stays the federal proceeding and holds the habeas petition in abeyance while
the petitioner pursues state remedies for his or her unexhausted claims. Id. After a
state court completes its review of a petitioner’s claims, the federal court can lift its
stay and allow the petitioner to proceed in federal court. Id. at 275–76. This
procedure is limited to circumstances where the petitioner “had good cause for his
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failure to exhaust, his unexhausted claims are potentially meritorious, and there is
no indication that he engaged in intentionally dilatory litigation tactics.” Id. at 278.
When a petitioner satisfies those conditions, “the district court should stay, rather
than dismiss, the mixed petition.” Id.
Petitioner’s current petition is not a “mixed petition” of exhausted and
unexhausted claims; it contains only the exhausted claim about the testimony of the
officer in charge of her case. Federal district courts, however, “ordinarily have
authority to issue stays,” id. at 276, and some federal circuit courts have applied the
stay-and-abeyance procedure described in Rhines to cases where the petition was not
“mixed.” See Mena v. Long, 813 F.3d 907, 908 (9th Cir. 2016) (holding that “the
Rhines stay-and-abeyance procedure is not limited to mixed petitions” and “a district
court may stay a petition that raises only unexhausted claims”) (emphasis in
original); Doe v. Jones, 762 F.3d 1174, 1181 (10th Cir. 2014) (concluding district
court had discretion to consider a Rhines stay even though the petitioner filed an
“unmixed” petition), cert. denied, 135 S. Ct. 1424 (2015); Heleva v. Brooks, 581
F.3d 187, 191–92 (3d Cir. 2009) (concluding from Pace v. DiGuglielmo, 544 U.S.
408 (2005), that the Supreme Court seems to have “open[ed] the door to utilizing
the stay-and-abeyance procedure in at least some limited circumstances beyond the

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presentation of a mixed petition” and that “the District Court’s interpretation of
Rhines as foreclosing the possibility of a stay for Heleva was in error”).
These appellate rulings are eminently reasonable because in Pace, 544 U.S.
at 416, the Supreme Court permitted prisoners seeking state post-conviction relief to
file “protective” petitions in federal court and ask the federal court to stay and abey
the federal habeas proceedings until state remedies were exhausted. Similarly, in
Duncan v. Walker, 533 U.S. 167, 182–83 (2001), former Justice Stevens stated that:
[I]n our post-AEDPA world there is no reason why a district court
should not retain jurisdiction over a meritorious claim and stay further
proceedings pending the complete exhaustion of state remedies. Indeed,
there is every reason to do so . . . when the failure to retain jurisdiction
would foreclose federal review of a meritorious claim because of the
lapse of AEDPA’s 1-year limitations period.
Accordingly, the Court will apply the Rhines factors to Petitioner’s case.
Petitioner suggests appellate counsel was “cause” for her failure to raise
additional claims on direct appeal, and her unexhausted claims are not plainly
meritless. In addition, she does not appear to be engaged in intentionally dilatory
litigation tactics. The Court concludes it would not be an abuse of discretion to stay
Arellano’s habeas petition while she continues to pursue remedies in state court. The
Court therefore GRANTS Petitioner’s motion for a stay in case number 2:17-cv12206 (Dkt. #2) and holds her habeas petition (Dkt. #1) in abeyance.

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If Petitioner is unsuccessful in state court and wishes to return to federal court,
she must move to re-open her case and file an amended habeas petition within ninety
(90) days of exhausting state remedies for her new claims. The motion and amended
petition should be filed in case number 2:17-cv-12206. 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, to avoid administrative difficulties, the Court orders the Clerk of
Court to close case number 2:17-cv-12206 for administrative purposes only.
Additionally, the Court hereby dismisses case number 2:17-cv-12133 because it has
been superseded by the habeas petition filed in case number 2:17-cv-12206.
IT IS SO ORDERED.

Dated: September 13, 2017

/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
September 13, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk

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