McGinnis v. Harry
OPINION AND ORDER granting 2 Motion to stay and hold in abeyance petition for writ of habeas corpus and administratively closing the case. Signed by District Judge Stephen J. Murphy, III. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 2:17-cv-13096
HON. STEPHEN J. MURPHY, III
OPINION AND ORDER GRANTING MOTION TO STAY AND HOLD IN ABEYANCE
PETITION FOR WRIT OF HABEAS CORPUS  AND ADMINISTRATIVELY
CLOSING THE CASE
The case is brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Leslie
McGinnis was convicted in the Wayne Circuit Court of unarmed robbery and unlawful
imprisonment, for which he is serving a term of 16 years and 8 months to 50 years'
imprisonment. McGinnis's pro se habeas application is poorly drafted and difficult to follow.
It appears to raise at least nine claims: (1) the police used an impermissibly suggestive
identification procedure, (2) the charging documents were defective, (3) the search of
McGinnis’s vehicle violated the Fourth Amendment, (4) the prosecutor withheld exculpatory
evidence from the defense, (5) the police violated McGinnis's Fifth Amendment rights in
obtaining a statement from him, (6) McGinnis's confrontation rights were violated by
admission of hearsay at the suppression hearing, (7) McGinnis was denied access to
transcripts during his appeal, (8) McGinnis was erroneously denied discovery and an expert
witness, (9) McGinnis was denied the effective assistance of counsel.
Presently before the Court is McGinnis's motion to stay the petition (ECF 2) so that
he can exhaust his state court remedies with respect to claims he wishes to raise in this
action that were not presented to the state courts on direct appeal.
McGinnis claims that, following his conviction and sentence, he filed a direct appeal
in the Michigan Court of Appeals. His appellate brief raised claims regarding the failure to
suppress evidence, sentencing, sufficiency of the evidence, suggestive identification
testimony, and the effectiveness of defense counsel. The Michigan Court of Appeals
affirmed McGinnis's convictions in an unpublished opinion. People v. McGinnis, No. 320629
(Mich. Ct. App. Sept. 10, 2015). McGinnis subsequently filed an application for leave to
appeal in the Michigan Supreme Court. The Michigan Supreme Court denied the
application on June 1, 2016. People v. McGinnis, No. 152558 (Mich. Sup. Ct. June 1,
2016). McGinnis states that on August 25, 2017, he filed a motion for relief from judgment
in the trial court raising the habeas claims that were not presented to the state courts during
his direct appeal. According to McGinnis, the motion is still pending in the trial court.
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 must
first exhaust all state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
("state prisoners must give the state courts one full fair opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate
review process"); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). To satisfy this
requirement, the claims must be "fairly presented" to the state courts, meaning that the
prisoner must have asserted both the factual and legal bases for the claims in the state
courts. See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans).
A federal district court has discretion to stay a petition raising unexhausted claims
to allow a petitioner to present those claims to the state courts and then return to federal
court on a perfected petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and
abeyance is available only in "limited circumstances” such as when the one-year statute
of limitations poses a concern, and when the petitioner demonstrates "good cause” for the
failure to exhaust state remedies before proceeding in federal court, the petitioner has not
engaged in intentionally dilatory litigation tactics, and the unexhausted claims are not
"plainly meritless." Id. at 277.
Here, McGinnis's unexhausted claims do not appear to be plainly meritless, and he
does not appear to be engaged in dilatory litigation tactics. McGinnis notes that he filed his
motion for relief from judgment with less than one month remaining on the one-year statute
of limitations. Dismissal of this case while McGinnis completes exhaustion of his claims
could therefore result in a subsequent petition being barred by the one-year statute of
limitations found in 28 U.S.C. § 2244(d). The Court therefore concludes that it is not an
abuse of discretion to stay this case while McGinnis completes exhaustion of his state
When a district court determines that a stay is appropriate pending exhaustion 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. Therefore, to ensure that there are
no delays by McGinnis in exhausting his state court remedies, this Court will impose time
limits within which he must proceed with his state court post-conviction proceedings. See
Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002).
Tolling is conditioned upon McGinnis diligently pursuing relief in the state courts by
pursuing timely appeals in the state court of his motion for relief from judgment, and then
returning to federal court within sixty (60) days of completing the exhaustion of his state
post-conviction remedies. Cf. Hargrove v. Brigano, 300 F. 3d 717, 718 (6th Cir. 2002).
WHEREFORE, it is hereby ORDERED that Petitioner’s motion to stay  is
GRANTED. The petition for writ of habeas corpus shall be held in abeyance pending
completion of state post-conviction review proceedings. This tolling is conditioned upon
McGinnis timely appealing the denial of his motion for relief from judgment through the
Michigan appellate courts and then re-filing his habeas petition—using the case number
already assigned to this case—within sixty (60) days after the conclusion of the state court
To avoid administrative difficulties, the Court ORDERS the Clerk of Court to CLOSE
this case for statistical purposes only. Nothing in this order or in the related docket entry
shall be considered a dismissal or disposition of this matter. See Sitto v. Bock, 207 F. Supp.
2d 668, 677 (E.D. Mich. 2002).
IT IS FURTHER ORDERED that upon receipt of a motion to reinstate the habeas
petition following exhaustion of state remedies, the Court may order the Clerk to reopen this
case for statistical purposes.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: October 3, 2017
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on October 3, 2017, by electronic and/or ordinary mail.
s/David P. Parker
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