Mengel v. Michigan Parole Board
OPINION AND ORDER amending caption, holding in abeyance the petition for writ of habeas corpus, and administratively closing the case. Signed by District Judge George Caram Steeh. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil No. 2:17-CV-13471
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
MICHIGAN PAROLE BOARD,
OPINION AND ORDER (1) AMENDING CAPTION, (2) HOLDING
IN ABEYANCE THE PETITION FOR WRIT OF HABEAS
CORPUS AND (3) ADMINISTRATIVELY CLOSING THE CASE
Peter Mengel, (“Petitioner”), presently on parole supervision with the
Michigan Parole Board through the Ionia County Probation Office in Ionia,
Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his convictions for attempted assault with intent
to do great bodily harm, M.C.L.A. § 750.84, and attempted assault by
strangulation, M.C.L.A. § 750.841b.
Petitioner filed a motion to stay the proceedings and to hold the
petition in abeyance to permit him to return to the state courts to present
additional claims that have not been exhausted with the state courts and
that are not being raised in the current habeas petition.
For reasons stated below, the Court amends the caption to reflect the
fact that petitioner is now on parole. The Court grants petitioner's motion,
holds the petition in abeyance, and stays the proceedings under the terms
outlined in this opinion to permit petitioner to return to the state courts to
exhaust his additional claims. The Court administratively closes the case.
Petitioner pleaded nolo contendere in the Ionia County Circuit Court.
Petitioner was sentenced to nineteen months to five years in prison.
Petitioner's plea and sentence were affirmed on appeal. People v. Mengel,
No. 334224 (Mich. Ct. App. Oct. 10, 2016), lv. den. 500 Mich. 1001, 895
N.W.2d 179 (2017), reconsideration denied, 901 N.W.2d 389 (Mich. 2017).
Petitioner filed his application for writ of habeas corpus, seeking relief
on the grounds that he raised in the state courts on his direct appeal.
Petitioner also filed a motion to hold the habeas petition in abeyance to
return to the state courts to exhaust additional claims.
As an initial matter, petitioner named Lori Gidley, the warden of the
Central Michigan Correctional Facility, where petitioner had been
incarcerated, as the respondent. The Michigan Department of Corrections'
Offender Tracking Information System (OTIS), which this Court is permitted
to take judicial notice of, See Ward v. Wolfenbarger, 323 F.Supp.2d 818,
821, n. 3 (E.D.Mich.2004), indicates that petitioner was paroled on August
29, 2017. The only proper respondent in a habeas case is the habeas
petitioner's custodian, which in the case of a paroled habeas petitioner
would be the parole board. Belser v. Michigan Parole Bd., No. CIV.
06-CV-10714, 2006 WL 986956, at *1 (E.D. Mich. Apr. 12, 2006). The
Court amends the caption to reflect that the proper respondent is now the
Michigan Parole Board.
A federal district court has the authority to stay fully exhausted
federal habeas petitions pending the exhaustion of additional 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); See also Thomas v. Stoddard, 89 F. Supp. 3d 937, 943 (E.D. Mich.
2015). Indeed, although there is no bright-line rule which prevents a district
court from dismissing a fully-exhausted habeas petition because of the
pendency of unexhausted claims in state court, for a federal court to justify
departing from the “heavy obligation to exercise jurisdiction,” there must be
a compelling reason to prefer a 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
The Court grants petitioner’s motion to hold the petition in abeyance
while he returns to the state courts to exhaust. The outright dismissal of
the petition, albeit without prejudice, might prevent petitioner from re-filing
his habeas petition after the exhaustion of these additional claims due to
the expiration of the one year statute of limitations contained in the
Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. §
2244(d)(1). A common circumstance calling for abating a habeas petition
arises when the original petition was timely filed, as is the case here, but a
second, exhausted habeas petition could be time barred by the AEDPA’s
statute of limitations. See Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th
Other considerations merit holding the petition in abeyance while
petitioner exhaust his new claims in the state courts. Specifically, “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)). Moreover, “[I]f this Court were to proceed in parallel with state
post-conviction proceedings, there is a risk of wasting judicial resources if
the state court might grant relief on the unexhausted claim.” Id.
Other considerations support the granting of a stay. This Court is
currently unable to determine whether petitioner’s new claims have any
merit, thus, the Court cannot say that petitioner’s claims are “plainly
meritless.” Thomas, 89 F. Supp. 3d at 943. Nor, on the other hand, can the
Court at this time say that petitioner’s new claims plainly warrant habeas
relief. Id. If the state courts were to deny petitioner post-conviction relief,
this Court would still benefit from the state courts’ adjudication of these
claims to determine whether to permit petitioner to amend his petition to
add these claims. Id. Finally, this Court sees no prejudice to respondent in
staying this case, 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-successivepetition requirements” should he seek habeas relief on his new claims.
Thomas, 89 F. Supp. 3d at 943.
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). To ensure that there are no delays by petitioner
in exhausting state court remedies, this Court imposes time limits within
which petitioner must proceed with his state court post-conviction
proceedings. See Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002).
The Court holds the petition in abeyance to allow petitioner to initiate
post-conviction proceedings in the state courts. This tolling is conditioned
upon petitioner initiating his state post-conviction remedies within ninety
days of receiving this Court’s order and returning to federal court within
ninety days of completing the exhaustion of state court post-conviction
remedies. Hargrove, 300 F. 3d at 721.
Petitioner’s method of properly exhausting these claims in the state
courts would be through filing a motion for relief from judgment with the
Ionia County Circuit Court under M.C.R. 6.502. See Wagner v. Smith, 581
F. 3d 410, 419 (6th Cir. 2009). Denial of a motion for relief from judgment
is reviewable by the Michigan Court of Appeals and the Michigan Supreme
Court upon the filing of an application for leave to appeal. M.C.R. 6.509;
M.C.R. 7.203; M.C.R. 7.302. Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D.
IT IS HEREBY ORDERED that the proceedings are STAYED and the
Court will hold the habeas petition in abeyance. Petitioner must file a
motion for relief from judgment in state court within ninety days of receipt of
this order. He shall notify this Court in writing that such motion papers
have been filed in state court. If he fails to file a motion or notify the Court
that he has done so, the Court will lift the stay and will reinstate the original
petition for writ of habeas corpus to the Court’s active docket and will
proceed to adjudicate only those claims that were raised in the original
petition. After petitioner fully exhausts his new claims, he shall file an
amended petition that includes the new claims within ninety days after the
conclusion of his state court post-conviction proceedings, along with a
motion to lift the stay. Failure to do so will result in the Court lifting the stay
and adjudicating the merits of the claims raised in petitioner’s original
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 Thomas, 89 F. Supp. 3d at 943-944.
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.
Dated: October 26, 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
October 26, 2017, by electronic and/or ordinary mail and also
on Peter Mengel #872760, Central Michigan Correctional
Facility, 320 N. Hubbard, St. Louis, MI 48880.
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