Jackson v. Trierweiler
OPINION and ORDER re 6 MOTION to Stay Proceedings and Abeyance of Petition - Signed by District Judge Nancy G. Edmunds. (LBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
GARRY DONNELL JACKSON,
CASE NO. 2:18-cv-11265
HONORABLE NANCY G. EDMUNDS
OPINION AND ORDER GRANTING PETITIONER’S MOTION FOR A STAY
(ECF NO. 6) AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES
This matter has come before the Court on petitioner Garry Donnell Jackson’s
petition for the writ of habeas corpus and his motion for a stay of this case while he
pursues state remedies. For the reasons given below, the Court will grant the motion for
a stay and close this case for administrative purposes.
Following a jury trial in Oakland County, Michigan, Petitioner was convicted of
three counts of second-degree criminal sexual conduct.
The trial court sentenced
Petitioner to current terms of 86 months to fifteen years in prison. In an appeal of right,
Petitioner argued that (1) he was denied a fair trial by “other acts” evidence that had no
proper purpose and (2) the complainant’s testimony at the preliminary examination was
erroneously admitted at trial in violation of the Michigan Rules of Evidence and his
constitutional right to confront witnesses. The Michigan Court of Appeals disagreed with
Petitioner’s arguments and affirmed his convictions in an unpublished, per curiam opinion.
See People v. Jackson, No. 326341 (Mich. Ct. App. Aug. 16, 2016). On January 31,
2017, the Michigan Supreme Court denied leave to appeal because it was not persuaded
to review the issues. See People v. Jackson, 889 N.W.2d 266 (Mich. 2017).
On April 22, 2018, Petitioner filed his habeas corpus petition through counsel. His
grounds for relief allege that:
(1) the admission of evidence regarding uncharged
misconduct deprived him of a fair trial because the evidence lacked any probative value
and was unfairly prejudicial; and (2) presentation of the complaining witness’s testimony
through a transcript of a previous hearing violated his Sixth Amendment right to confront
his accuser. The State filed an answer to the petition in which it argues that Petitioner’s
claims lack merit and are not cognizable on habeas review.
Petitioner subsequently moved to stay this case. He purports to have newly
discovered grounds for relief that were not raised on direct appeal. The newly discovered
claims allege ineffective assistance of trial counsel and appellate counsel. Petitioner
alleges that he recently raised his new claims in a post-conviction motion, which is
pending in the state trial court. He wants the Court to hold his habeas petition in abeyance
while he exhausts state remedies for his new claims.
The doctrine of exhaustion of state remedies requires state prisoners to give the
state courts an opportunity to act on their claims before they present their claims to a
federal court in a habeas corpus petition. See 28 U.S.C. § 2254(b)(1), (c); 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 claims to the state court of appeals and to the state supreme court
before raising the claims in a federal habeas corpus petition. Wagner v. Smith, 581 F.3d
410, 414-15 (6th Cir. 2009).
Petitioner presented his current claims to the state court on appeal from his
convictions, and a dismissal of his habeas petition while he pursues additional state-court
remedies could result in a subsequent petition being barred by the one-year statute of
limitations, 28 U.S.C. § 2244(d). The Supreme Court, however, has approved a “stayand-abeyance” procedure that allows district courts to stay a federal proceeding and to
hold a habeas petition in abeyance while the petitioner pursues state remedies for his
unexhausted claims. See Rhines v. Weber, 544 U.S. 269, 275 (2005). After the prisoner
exhausts his state remedies, the federal court can lift its stay and allow the petitioner to
proceed in federal court. Id. at 275-76.
The Rhines stay-and-abeyance procedure is available when the petitioner has
good cause for the failure to exhaust his state remedies first in state court, the
unexhausted claims are potentially meritorious, and the petitioner is not engaged in
abusive litigation tactics. Id. at 278. If the prisoner satisfies those conditions, the district
court should stay, rather than dismiss, the petition. Id.
Unlike Petitioner’s habeas petition, which contains only exhausted claims, Rhines
involved a “mixed petition” of exhausted and unexhausted claims. Nevertheless, federal
courts “ordinarily have authority to issue stays,” id. at 276, and some courts have applied
Rhines’ stay-and-abeyance procedure where the petition was not a “mixed” petition of
exhausted and unexhausted claims. See, e.g., 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 that “a district court may stay a petition that raises only unexhausted
claims”) (emphasis omitted); Doe v. Jones, 762 F.3d 1174, 1181 (10th Cir. 2014)
(concluding that the district court had discretion to consider a Rhines stay even though
the petitioner filed an “unmixed” petition); Heleva v. Brooks, 581 F.3d 187, 188, 191-92
(3d Cir. 2009) (concluding from the Supreme Court’s decision in 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
presentation of a mixed petition” and that the district court erred in concluding that Rhines
applies only to “mixed” petitions). The approach taken in these cases is reasonable and
Furthermore, Petitioner arguably satisfies Rhines’ criteria for staying a case. First,
he alleges that his appellate attorney is cause for his failure to exhaust his new claims
before filing his habeas petition. Second, although he has not provided the Court with
any details about his unexhausted claims, he contends that the claims have merit and
that they are grounded in fact and persuasive legal authority. Finally, he alleges that he
is not engaged in intentional delaying tactics and that an assistant attorney general for
the State of Michigan has no objection to his request for a stay.
circumstances, the Court believes that it would not be an abuse of discretion to stay this
case while Petitioner pursues additional state-court remedies. Accordingly, the Court
grants Petitioner’s motion for a stay (ECF No. 6) and closes this case for administrative
If Petitioner is unsuccessful in state court and wishes to return to federal court, he
must file a motion to re-open this case and an amended habeas corpus petition. The
amended petition and motion to re-open this case must be filed within thirty days of
exhausting state remedies.
The Court expresses no opinion on whether any of
Petitioner’s new claims will be barred from substantive review if, and when, he returns to
this Court. Finally, any failure to comply with this order could result in the dismissal of
this case. Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014).
s/ Nancy G. Edmunds____________
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: January 8, 2019
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