Harison v. Harry

Filing 11

OPINION AND ORDER DENYING WITHOUT PREJUDICE Motion to Stay 9 and DENYING WITHOUT PREJUDICE Motion to Appoint Counsel 10 . Signed by District Judge Laurie J. Michelson. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STANLEY WILLIAM HARRISON,
Plaintiff,

Case No. 17-13692
Honorable Laurie J. Michelson

v.
SHIRLEE HARRY,
Defendant.
OPINION AND ORDER DENYING WITHOUT PREJUDICE MOTION TO STAY [9]
AND DENYING WITHOUT PREJUDICE MOTION TO APPOINT COUNSEL [10]
Stanley Harrison was convicted for first-degree murder and is serving his sentence in a
Michigan prison. He asks this federal court to order a new trial or his release. In particular, he
petitions for a writ of habeas corpus on six grounds. (See R. 1, PID 5.) The six grounds appear to
be the ones he raised when appealing his conviction in state court (see R. 1, PID 3–4) and
Harrison explicitly says that he has “fully exhausted all available state court remedies” (R. 1,
PID 4).
But now Harrison asks this Court to stay this case until state remedies are exhausted.
(R. 9.) This could mean one of two things: either the statement about exhaustion in Harrison’s
petition is not accurate or Harrison has additional claims beyond the six in the petition that he
seeks to exhaust in state court. In either event, the Court cannot grant a stay on this record.
Assuming it is the first situation, the Court would have two options: dismiss the petition
and permit Harrison to go exhaust his six claims in state court or, if that option would render
Harrison too late to refile a petition for habeas corpus relief, stay this case and hold his petition
in abeyance while he exhausts. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005); Rhines v.

Weber, 544 U.S. 269, 278 (2005). But the second option (stay and abey) is only justified if “there
was good cause for the petitioner’s failure to exhaust his claims first in state court” and if the
claims are not “plainly meritless.” Rhines, 544 U.S. at 278. Harrison’s petition is more of a list of
claims than a brief. (See R. 1.) And while these claims were likely developed on appeal in state
court, the Court does not yet have the state-court record. So it is hard for this Court to assess
whether the claims in Harrison’s petition have any merit. And even if the Court could make that
assessment, Harrison’s motion to stay is one sentence and does not establish a good reason for
not exhausting the six claims before coming here.
Assuming that it is the second situation—the six claims in the petition are exhausted but
Harrison has still more claims that he would like to exhaust in state court before presenting them
to a federal one—the analysis differs slightly but the result is the same. When “a court decides
whether to hold in abeyance a habeas corpus petition that contains only exhausted claims, the
question is not whether to stay or dismiss the petition . . . but whether to stay or proceed.”
Armour v. MacLaren, No. 15-10753, 2015 WL 9918195, at *1 (E.D. Mich. Dec. 4, 2015) (citing
Thomas v. Stoddard, 89 F. Supp. 3d 937, 941 (E.D. Mich. 2015)). In deciding whether to stay or
proceed, this Court considers many factors bearing on “judicial economy and federal-state
relations,” including “whether the exhausted claims in the petition are plainly meritorious while
the unexhausted claims plainly meritless” and “whether the habeas petitioner has good cause for
seeking the stay.” See id. (citing Thomas, 89 F. Supp. 3d at 941). As just discussed, the Court
cannot make those determinations on this record.
Accordingly, the Court DENIES WITHOUT PREJUDICE Harrison’s motion to stay and
abey.

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Harrison also asks this Court for counsel. (R. 10.) There is no right to counsel in a federal
habeas corpus proceeding, Abdur-Rahman v. Michigan Dep’t of Corr., 65 F.3d 489, 492 (6th Cir.
1995); Childs v. Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987), and so this Court typically
appoints counsel only in exceptional cases. Until the claims are briefed and this Court has had a
chance to look at the state-court record, the Court lacks the information to decide whether this is
an exceptional case. So Harrison’s motion for counsel is DENIED WITHOUT PREJUDICE.
Harrison may renew his request for counsel after the Warden files her response to the petition.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
U.S. DISTRICT JUDGE

Dated: January 26, 2018

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court=s ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on January 26, 2018.
s/Keisha Jackson
Case Manager

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