Anderson v. Warren

Filing 4

OPINION AND ORDER staying habeas petition and holding case in abeyance. (Closing case for statistical purposes only) Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TY-RON STEVEN ANDERSON,
Petitioner,

Case No. 2:18-cv-11690
Hon. George Caram Steeh

v.
PATRICK WARREN,
Respondent.
__________________________/
OPINION AND ORDER STAYING
HABEAS PETITION AND HOLDING CASE IN ABEYANCE
Ty-Ron Steven Anderson filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. The petition challenges his 2015
Wayne Circuit Court conviction for first-degree murder, felon in possession
of a firearm, and commission of a felony with a firearm. The petition raises
four claims: 1) there was insufficient evidence presented at trial to sustain
Petitioner’s convictions, 2) the prosecutor committed misconduct at trial, 3)
Petitioner was denied the effective assistance of trial counsel, and 4)
Petitioner’s appellate counsel was ineffective for failing to raise additional
allegations of ineffective assistance of trial counsel.

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Petitioner asserts that his first three habeas claims were presented to
the Michigan Court of Appeals and Michigan Supreme Court during his
direct appeal. He asserts that his fourth claim was only presented to the
Michigan Supreme Court but not to the Michigan Court of Appeals. The
Michigan Supreme Court denied relief on May 31, 2017. People v.
Anderson, No. 155056 (Mich. Sup. Ct. May 31, 2017). The habeas petition
was signed and dated on May 22, 2018.
I. Discussion
After a petition for habeas corpus is filed the Court must undertake a
preliminary review to determine whether “it plainly appears from the face of
the petition and any exhibits annexed to it that the petitioner is not entitled
to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see
also 28 U.S.C. § 2243. If the Court determines that the petitioner is not
entitled to relief, the Court must summarily dismiss the petition. McFarland
v. Scott, 512 U.S. 849, 856 (1994); Carson v. Burke, 178 F.3d 434, 436
(6th Cir. 1999); Rule 4, Rules Governing § 2254 Cases.
A federal habeas petitioner must exhaust remedies available in the
state courts before filing his petition. 28 U.S.C. § 2254(b)(1); O’Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). The district court can and must raise

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the exhaustion issue on its own when it clearly appears that habeas claims
have not been presented to the state courts. See Prather v. Rees, 822 F.2d
1418, 1422 (6th Cir. 1987). Exhaustion requires a petitioner to “fairly
present” federal claims so that state courts have a “fair opportunity” to
apply controlling legal principles to the facts bearing upon a petitioner’s
constitutional claim. See O’Sullivan, 526 U.S. at 842; Picard v. Connor, 404
U.S. 270, 275-77 (1971). “[S]ubmission of new claims to a state’s highest
court on discretionary review does not constitute fair presentation of the
claims to the state courts.” Skinner v. McLemore, 425 F. App’x 491, 494
(6th Cir. 2011) (citing Castille v. Peoples, 489 U.S. 346, 349 (1989)).
A prisoner is required to comply with the exhaustion requirement as
long as there is still a state-court procedure available for him to do so. See
Adams v. Holland, 330 F.3d 398, 401 (6th Cir. 2003). In this case, a
procedure to exhaust Petitioner’s fourth claim is available. Petitioner may
file a motion for relief from judgment in the Wayne County Circuit Court
under Michigan Court Rule 6.502. If that motion is denied, he may seek
review by the Michigan Court of Appeals and Michigan Supreme Court by
filing an application for leave to appeal. Mich. Ct. R. 6.509; Mich. Ct. R.
7.203; Mich. Ct. R. 7.302.

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Normally, a petition that contains unexhausted claims will be
dismissed without prejudice so that Petitioner can present his unexhausted
claims to the state courts and then return to federal court on a perfected
petition. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). However, to avoid
problems with the one year statute of limitations contained in 28 U.S.C. §
2244(d)(1), a federal court may opt instead to stay a federal habeas
petition and hold further proceedings in abeyance pending resolution of
state court post-conviction proceedings. See Rhines v. Weber, 544 U.S.
269, 278 (2005). Here, Petitioner filed his habeas petition with about only
three months remaining on the statute of limitations. Accordingly, a stay of
proceedings is warranted rather than a dismissal without prejudice.
The Court will therefore stay the petition for writ of habeas corpus
and hold the case in abeyance. Before proceeding in federal court,
Petitioner must exhaust his fourth habeas claim in the state courts by filing
a motion for relief from judgment in the trial court within 60 days of this
order, and then if it is denied, he must file timely appeals in the Michigan
Court of Appeals and Michigan Supreme Court. See e.g. Wagner v. Smith,
581 F. 3d 410, 419 (6th Cir. 2009). Further, he must ask this Court to lift
the stay within 60 days of exhausting his state court remedies. Failure to

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comply with any of the conditions of the stay could result in the dismissal of
the habeas petition. Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014).
Petitioner has another option. Petitioner may delete his unexhausted
fourth claim and proceed only on his exhausted first three claims (those
that were presented to the Michigan Court of Appeals on direct appeal). If
Petitioner wishes to exercise this option, he may move to re-open this case
and amend his petition to proceed only on the exhausted claims within 30
days of the filing date of this order. The Court makes no determination as
to the merits of any of Petitioner’s claims.
II. Certificate of Appealability
Before Petitioner may appeal this decision, a certificate of
appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P.
22(b). When a district court denies a habeas claim on procedural grounds
without addressing the merits, a certificate of appealability should issue if it
is shown that jurists of reason would find it debatable whether the petitioner
states a valid claim of the denial of a constitutional right, and that jurists of
reason would find it debatable whether the court was correct in its
procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
Reasonable jurists could not debate whether the Court was correct in its

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procedural ruling. Accordingly, the Court will deny a certificate of
appealability. The Court also will deny Petitioner leave to proceed in forma
pauperis on appeal as an appeal cannot be taken in good faith. See Fed.
R. App. P. 24(a).
III. Order
It is ORDERED that the petition for writ of habeas corpus is STAYED
and this case is HELD IN ABEYANCE. This order is conditioned upon
Petitioner filing his motion for relief from judgment within 60 days of this
order and then filing a motion to reopen the case and an amended
petition—using the case number already assigned to this case—within sixty
60 days after the conclusion of the state court post-conviction proceedings.
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 should Petitioner wish to proceed only on
his exhausted claims instead of pursuing state post-conviction review, he

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may move to re-open this case and amend his petition to delete his
unexhausted fourth claim within 30 days of the date of this order.
It is further ORDERED that a certificate of appealability and
permission to proceed on appeal in forma pauperis are DENIED.
A failure to abide by the time limits of this order may result in
dismissal of this action.
Dated: June 7, 2018
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
June 7, 2018, by electronic and/or ordinary mail and also on
Ty-Ron Steven Anderson #405128, Macomb Correctional
Facility, 34625 26 Mile Road, New Haven, MI 48048.
s/Barbara Radke
Deputy Clerk

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