Ficht v. Braman
ORDER Granting 7 MOTION filed by Jerry Thomas Ficht and Closing Case for Administrative Purposes. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JERRY THOMAS FICHT,
Case No. 2:19-cv-11323
Honorable Sean F. Cox
Magistrate Judge David R. Grand
ORDER GRANTING PETITIONER’S MOTION TO HOLD CASE
IN ABEYANCE  AND CLOSING CASE FOR ADMINISTRATIVE PURPOSES
This matter has come before the Court on petitioner Jerry Thomas Ficht’s pro se
habeas corpus petition and his motion to hold the petition in abeyance while he exhausts
state remedies. For the reasons given below, the Court grants Petitioner’s motion and
closes this case for administrative purposes.
In 2016, Petitioner was convicted of assault with intent to do great bodily harm less
than murder, Mich. Comp. Laws § 750.84. The state trial court sentenced Petitioner to
prison for five to ten years.
The Michigan Court of Appeals affirmed Petitioner’s
conviction, see People v. Ficht, No. 334021, 2018 WL 521828 (Mich. Ct. App. Jan. 23,
2018) (unpublished), and on July 3, 2018, the Michigan Supreme Court denied leave to
appeal. See People v. Ficht, 502 Mich. 904; 913 N.W.2d 288 (2018).
On May 6, 2019, Petitioner filed his habeas corpus petition. He alleges as grounds
for relief that: (1) the trial court deprived him of his constitutional rights to present a
defense and to be judged by a properly instructed jury when the court (a) denied his
request for a jury instruction on self-defense and (b) instructed the jury on flight; (2) the
trial court abused its discretion when it denied his motion to strike the complainant’s
testimony after the complainant admitted that he violated the court’s sequestration order;
and (3) his conviction must be vacated due to the lack of proof of intent to harm the
complainant. Petitioner alleges that he presented these issues to the state courts on
After the Court ordered the State to file a responsive pleading, Petitioner filed a
motion to hold his case in abeyance while he exhausts state remedies for five new claims.
The Court understands the unexhausted claims to allege that:
(1) Petitioner’s trial
attorney failed to present a substantive defense when he advanced a self-defense theory,
but prevented Petitioner from testifying and also failed to call credible witnesses to
establish a claim of self-defense; (2) the trial court erred when it refused to re-instruct the
jury on the elements of the crime after the jury foreman requested a re-instruction on the
elements; (3) the trial court and prosecutor violated Michigan Rule of Evidence 404(b)
when they admitted prejudicial “other acts” despite Petitioner’s objections to the evidence;
(4) Petitioner’s trial attorney was ineffective because he failed to conduct a reasonable
investigation and coerced Petitioner into not testifying; and (5) Petitioner’s appellate
attorney rendered ineffective assistance when she failed to conduct a post-conviction
investigation, failed to interview witnesses, failed to file a motion to correct the state-court
record, and refused to raise a claim of ineffective assistance of trial counsel. The State
has not filed an answer to Petitioner’s motion, and its answer to the habeas petition
currently is not due until December 20, 2019.
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). A federal district court normally must dismiss a petition
containing any unexhausted claims. Rose v. Lundy, 455 U.S. 509, 510, 522 (1982).
Petitioner appears to have exhausted state remedies for the three claims that he
presented to the Court in his habeas petition. He now wishes to raise five additional
issues that he has not presented to the state courts.
A dismissal of Petitioner’s habeas petition while he pursues state remedies for
several additional claims could result in a subsequent petition being barred by the oneyear statute of limitations for habeas petitions. See 28 U.S.C. § 2244(d). As a result of
the interplay between the one-year habeas statute of limitations and Lundy’s dismissal
requirement, the Supreme Court has approved a stay-and-abeyance procedure which
permits a district court to hold a habeas petition in abeyance while the petitioner returns
to state court to exhaust state remedies for previously unexhausted claims. See Rhines
v. Weber, 544 U.S. 269, 275 (2005). “Once the petitioner exhausts his state remedies,
the district court [can] lift the stay and allow the petitioner to proceed in federal court.” Id.
at 275-76. This stay-and-abeyance procedure normally is available when the petitioner
had 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
intentionally dilatory litigation tactics. Id. at 278. If the prisoner satisfies those conditions,
the district court should stay, rather than dismiss, the petition. Id.
Petitioner alleges that his former attorneys and his treatment for mental illness are
“cause” for his failure to raise his unexhausted claims on direct appeal and that he is not
engaged in intentionally dilatory litigation tactics. Furthermore, because at least some of
Petitioner’s unexhausted claims arguably have potential merit, it would not be an abuse
of discretion to stay this case while Petitioner pursues additional state-court remedies.
The Court recognizes that the Supreme Court’s decision in Rhines addressed a
“mixed” petition of exhausted and unexhausted claims, whereas Petitioner’s pleading
contains only presumptively exhausted claims. District courts, however, “ordinarily have
authority to issue stays,” id. at 276, and some appellate courts have applied Rhines’ stayand-abeyance procedure where the petition was not a “mixed” petition. See, e.g., 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,
because “a categorical bar on stays for unmixed petitions would ‘unreasonably impair the
prisoner’s right to relief’ and could ‘effectively end any chance at federal habeas review’
”) (citations omitted); Heleva v. Brooks, 581 F.3d 187, 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
Accordingly, the Court GRANTS Petitioner’s motion to hold his habeas petition in
abeyance and closes this case for administrative purposes. The State need not file a
responsive pleading at this time, and nothing in this order shall be construed as an
adjudication of Petitioner’s current claims.
As a condition of the stay, Petitioner must file a motion for relief from judgment in
the state trial court within ninety (90) days of the date of this order if he has not already
filed such a motion. Additionally, 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 within ninety (90) days of exhausting state remedies for his new claims.
The amended petition must contain the case number and caption for this case, and
because the amended petition will replace the initial petition, it must include all the
exhausted claims that Petitioner wants the Court to adjudicate. 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).
Dated: October 10, 2019
s/Sean F. Cox
Sean F. Cox
U. S. District Judge
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