Friday v. Barrett
OPINION and ORDER Granting Petitioner's Motions to Hold his Habeas Petition in Abeyance [5, 6] and Closing this Case for Administrative Purposes. Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 17-12351
Honorable Denise Page Hood
OPINION AND ORDER GRANTING PETITIONER’S MOTIONS
TO HOLD HIS HABEAS PETITION IN ABEYANCE [5, 6]
AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES
This case has come before the Court on petitioner Tarell Friday’s pro se
petition for the writ of habeas corpus under 28 U.S.C. § 2254 and Petitioner’s
motions to hold the petition in abeyance. For the reasons set forth below, the Court
will grant Petitioner’s motions for a stay, hold the habeas petition in abeyance, and
close this case for administrative purposes.
Petitioner alleges that, in December of 2016, Detroit police officers arrested
him while he was sitting on a couch in someone’s apartment. During a search of
the apartment, the officers discovered a firearm magazine and two men hiding in
the bedroom. Witnesses identified one of the two men in the bedroom as the
owner of the firearm magazine. Petitioner, nevertheless, was detained, and because
he was a state parolee at the time, his parole officer charged him with five counts
of violating the conditions of parole. All five charges, which involved threatening
behavior and possessing a firearm or firearm components, were dismissed for lack
of probable cause at a preliminary hearing held on December 29, 2106.
On January 5, 2017, while Petitioner was still detained, his parole officer
charged him with the same five counts and one new count of changing his address
without the permission of his field agent. The charges were dismissed for lack of
probable cause at a second preliminary hearing.
On January 25, 2017, Petitioner’s parole officer charged him with three
counts of violating the conditions of parole: (1) possessing firearm ammunition;
(2) possessing firearm components; and (3) violating state law. Probable cause
apparently was established at the third preliminary hearing, and after a parole
revocation hearing, the Michigan Parole Board revoked Petitioner’s parole and
ordered his imprisonment for twenty-four months.
On July 19, 2017, Petitioner filed his habeas corpus petition. He maintains
that, after two preliminary hearings where there was insufficient evidence to
support the charges, he should have been reinstated on parole. He also claims that
friction between him and his parole agent may have influenced his agent’s
judgment and that his continued detention in state custody violates his right to due
On July 25, 2017, the Court granted Petitioner leave to proceed in forma
pauperis, but before the Court could take any further action in this case, Petitioner
filed two identical motions to hold his habeas petition in abeyance. He appears to
be saying that he wishes to pursue state remedies for his claim before proceeding
with his habeas petition.
The doctrine of exhaustion of state remedies requires state prisoners to
present 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,
839 (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. A federal district court ordinarily must dismiss a petition containing any
unexhausted claims. Rose v. Lundy, 455 U.S. 509, 510 (1982).
Petitioner apparently has not exhausted any state remedies for his due
process claim, but he has an available state remedy to exhaust. In Michigan, a state
prisoner may challenge the revocation of parole by filing a state complaint for the
writ of habeas corpus. Triplett v. Deputy Warden, 142 Mich. App. 774, 779; 371
N.W.2d 862, 865 (1985) (citing In re Casella, 313 Mich. 393; 21 N.W.2d 175
(1946)). “[T]here is no limitation on the time in which a complaint for habeas
corpus must be filed, as long as the prisoner will be in custody at the time
judgment becomes effective.” Id. (citing In re Rankin, 330 Mich. 91; 47 N.W.2d
28 (1951)). “Orders of denial in habeas corpus proceedings are not appealable as
of right,” but the prisoner may renew his claims by filing an original complaint in
the Michigan Court of Appeals. Id., 142 Mich. App. at 779-80; 371 N.W.2d 866
(citing Parshay v. Warden of Marquette Prison, 30 Mich. App. 556, 558, 186
N.W.2d 859 (1971)).
Although the Court could dismiss the petition while Petitioner pursues these
state remedies, a dismissal of this case could result in a subsequent petition being
barred by the one-year statute of limitations applicable to habeas petitions filed
under § 2254. See 28 U.S.C. § 2244(d). The Court, therefore, believes the more
prudent approach would be to stay this case. Federal district courts ordinarily have
authority to grant stays, Rhines v. Weber, 544 U.S. 269, 276 (2005), and they “may
stay a petition that raises only unexhausted claims.” Mena v. Long, 813 F.3d 907,
908 (9th Cir. 2016) (emphasis in original).
[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 [or her] failure to exhaust, his [or her] unexhausted claims are
potentially meritorious, and there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.
Rhines, 544 U.S. at 278.
Because Petitioner has raised an arguable claim and is not engaged in
intentionally dilatory litigations tactics, it would not be an abuse of discretion to
stay this case. The Court, therefore, GRANTS Petitioner’s motions to hold his
habeas petition in abeyance (Document Nos. 5 and 6) while he pursues state
remedies for his due process claim.
As a condition of the stay, Petitioner shall raise his due process claim in state
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 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
The Court ORDERS the Clerk of the Court to close this case for
administrative purposes. Nothing in this order should be construed as an
adjudication of Petitioner’s claim.
s/Denise Page Hood
Chief Judge, United States District Court
Dated: October 30, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on October 30, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
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