North v. Nagy

Filing 14

OPINION AND ORDER granting 11 Motion for leave to amend, granting 13 Motion to hold proceedings in abeyance, denying 10 Motion for extension of time, and denying 12 Motion for evidentiary hearing. Signed by District Judge Gershwin A. Drain. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHRISTOPHER NORTH,
Petitioner,

Case Number: 2:18-CV-11581
HON. GERSHWIN A. DRAIN

v.
NOAH NAGY,
Respondent.
/

OPINION AND ORDER GRANTING PETITIONER=S MOTION FOR
LEAVE TO AMEND [#11] AND MOTION TO HOLD PROCEEDINGS IN
ABEYANCE [#13] AND DENYING WITHOUT PREJUDICE
PETITIONER=S MOTION FOR EXTENSION OF TIME [#10] AND
MOTION FOR EVIDENTIARY HEARING [#12]
I.

Introduction
Michigan state prisoner Christopher North filed a Petition for a Writ of Habeas

Corpus pursuant to 28 U.S.C. ' 2254, asserting he is being held in violation of his
constitutional rights. Petitioner was convicted in the Wayne County Circuit Court
of second-degree murder, MICH. COMP. LAWS ' 750.317. Now before the Court
are Petitioner=s Motion for Leave to Amend (Dkt. 11) and Motion To Hold
Proceedings in Abeyance (Dkt. 13). The Court will GRANT both Motions.
II.

Procedural History

Petitioner was convicted by a jury in Wayne County Circuit Court. On April
16, 2013, he was sentenced to 60 to 100 years= imprisonment. Petitioner filed an
appeal of right with the Michigan Court of Appeals. The Michigan Court of
Appeals affirmed Petitioner=s convictions. People v. North, No. 316061, 2014 WL
4214943 (Mich. Ct. App. Aug. 26, 2014) (unpublished). Petitioner then filed an
application for leave to appeal with the Michigan Supreme Court. The Michigan
Supreme Court denied leave to appeal. People v. North, 497 Mich. 983 (Mich.
March 31, 2015).
Petitioner filed a motion for relief from judgment in the Wayne County Circuit
Court, which the trial court denied. See 12/19/16 Wayne County Cir. Ct. Order.
The Michigan Court of Appeals and Michigan Supreme Court denied Petitioner
leave to appeal. People v. North, No. 338693 (Mich. Ct. App. July 28, 2017);
People v. North, 501 Mich. 1060 (Mich. May 1, 2018).
Petitioner then filed the pending Habeas Corpus Petition. He raises five
claims for relief: (i) insufficient evidence supported the conviction; (ii) sentence
violates the Eighth and Fourteenth Amendments; (iii) court improperly instructed
jury on causation and counsel was ineffective in failing to request specific
instruction; (iv) denied counsel at critical stage of proceeding; and (v) prosecutorial
misconduct.
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III.

Discussion
A.

Motion to Amend

Petitioner seeks leave to amend his Petition. First, he asks the Court to
amend the case caption to reflect his current custodian, Shane Jackson. The proper
respondent for a habeas petition filed pursuant to 28 U.S.C. ' 2254 is the state officer
having custody of the petitioner. See Rule 2, Rules Governing Section 2254 Cases.
The warden of Petitioner's current place of incarceration is Shane Jackson. The
Court, therefore, will require the case caption to be amended.
Second, Petitioner seeks to amend the Petition to raise a claim based upon the
Supreme Court=s recent decision in McCoy v. Louisiana, C U.S. C, 138 S. Ct. 1500
(2018).

Federal Rule of Civil Procedure Rule 15(a)(1) allows a party to amend a

petition once as a matter of course within A21 days after service ... or 21 days after
service of a responsive pleading ... whichever is earlier.@ Fed. R. Civ. P. 15(a)(1).
In this case, the Petition was served on June 25, 2018. Petitioner did not file his
Motion within 21 days of service and therefore may not amend as a matter of course.
If a party may not amend a petition as a matter of course, a party may do so by leave
of court pursuant to Fed. R. Civ. P. 15(a)(2). Rule 15(a)(2) provides that the court
"should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2).
The decision to grant or deny a motion to amend a habeas petition is within
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the discretion of the district court. Clemmons v. Delo, 177 F.3d 680, 686 (8th Cir.
1999); Fed. R. Civ. P. 15. Notice and substantial prejudice to the opposing party
are the critical factors in determining whether an amendment to a habeas petition
should be granted. Coe v. Bell, 161 F.3d 320, 341-342 (6th Cir. 1998). Here,
Petitioner's request to amend his Petition does not appear to be made in bad faith or
to be an attempt to delay the proceedings. Further, the Court foresees no prejudice
to Respondent in allowing the amendment. The Court will therefore GRANT the
Motion.

B.

Motion to Hold Proceedings in Abeyance

Petitioner seeks a stay in this matter while he raises in state court additional
claims based upon the McCoy decision.
State prisoners must exhaust available state remedies for each of the claims
presented in a habeas petition before seeking a federal writ of habeas corpus. 28
U.S.C. ' 2254(b)(1). A prisoner who has not yet exhausted his or her state court
remedies may file a A>protective= petition in federal court and ask[] the federal court
to stay and abey the federal habeas proceedings until state remedies are exhausted.@
Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), citing Rhines v. Weber, 544 U.S.
269 (2005). A federal court may stay a federal habeas petition and hold further
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proceedings in abeyance pending resolution of state court post-conviction
proceedings, provided there is good cause for failure to exhaust claims and that the
unexhausted claims are not Aplainly meritless.@ Rhines, 544 U.S. at 278.
Here, the Court finds that a stay is warranted. First, dismissal of this case
while Petitioner pursues state remedies could result in a subsequent petition being
barred by the one-year statute of limitations found in 28 U.S.C. ' 2244(d). Second,
Petitioner has good cause for failing to exhaust his claims because McCoy was
decided only four days before he filed the pending Petition. Third, the state court=s
disposition of these claims may moot claims raised in this Petition. Fourth, there
is no evidence of intentional delay.

Under these circumstances, the Court

concludes it is not an abuse of discretion to stay this case while Petitioner pursues
state remedies for his unexhausted claims.
When a district court determines that a stay is appropriate pending exhaustion
of state court remedies, the district court Ashould place reasonable time limits on a
petitioner=s trip to state court and back.@ Id. To ensure that Petitioner does not
delay in exhausting his state court remedies, the Court will impose upon Petitioner
time limits within which he must proceed. See Palmer v. Carlton, 276 F.3d 777,
781 (6th Cir. 2002). The stay is conditioned on Petitioner presenting the
unexhausted claims to the state courts within sixty days of the filing date of this
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Order.

See Hill v. Anderson, 300 F.3d 679, 683 (6th Cir. 2002) (discussing

procedure for staying habeas proceeding pending exhaustion of state court
remedies). The stay is further conditioned on Petitioner=s return to this Court, by
the filing of a motion to reopen and amend the Petition, using the same case number
included at the top of this Order, within sixty days of fully exhausting his state court
remedies. See Palmer, 276 F.3d at 781 (adopting approach taken in Zarvela v.
Artuz, 254 F.3d 374, 381 (2d Cir. 2001)). Should Petitioner fail to comply with
any of these conditions, the Petition may be dismissed. See Calhoun v. Bergh, 769
F.3d 409, 411 (6th Cir. 2014) (holding that dismissal of a habeas petition is
appropriate where a petitioner has failed to comply with the terms of a stay).
IV.

Conclusion
Accordingly, the Court GRANTS Petitioner=s Motion to Amend (Dkt. 11),

and GRANTS Petitioner=s Motion to Hold Proceedings in Abeyance (Dkt. 13).
The Court ORDERS the case caption amended to read: Christopher North v. Shane
Jackson.
The Clerk of Court shall close this case for statistical purposes. Upon receipt
of a motion to lift the stay following exhaustion of state remedies, the Court may
order the Clerk to reopen this case.
The Court DENIES WITHOUT PREJUDICE Petitioner=s Motion for
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Extension of Time (Dkt. 10) and Motion for Evidentiary Hearing (Dkt. 12).
Petitioner may ask to reinstate these Motions if and when he moves to reopen these
proceedings.
SO ORDERED.

Dated:

March 7, 2019
s/Gershwin A. Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was mailed to the attorneys
of record on this date, March 7, 2019, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager

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