Perry v. Stephenson

Filing 8

OPINION and ORDER Granting the State's Motion to Hold the Order for Responsive Pleading in Abeyance re 7 and Granting Petitioner's Motion to Stay the Habeas Proceedings re 6 . Signed by District Judge Denise Page Hood. (LSau)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES MICHAEL PERRY,
Petitioner,
v.

Case No. 21-cv-12139
Honorable Denise Page Hood

GEORGE STEPHENSON,
Respondent.
_______________________________/
OPINION AND ORDER GRANTING THE STATE’S MOTION TO HOLD
THE ORDER FOR RESPONSIVE PLEADING IN ABEYANCE (ECF No. 7)
AND GRANTING PETITIONER’S MOTION TO STAY THE HABEAS
PROCEEDINGS (ECF No. 6)
This is a pro se habeas corpus case under 28 U.S.C. § 2254. Petitioner Charles
Michael Perry is challenging his plea-based convictions for an assault and three
weapon offenses. His current claim alleges that the state trial court abused its
discretion when it denied his motion to withdraw his no-contest plea.
The Court ordered the State to file a responsive pleading (ECF No. 4), but
before the State could file a response to the habeas petition, Petitioner moved for a
stay and to have his habeas petition held in abeyance while he exhausts state
remedies for four new claims. (ECF No. 6.) The State then asked the Court to hold
its order for responsive pleading in abeyance pending a decision on Petitioner’s
motion for a stay. (ECF No. 7.) Because the Court believes that a stay is appropriate,

the Court will hold the order for responsive pleading in abeyance and grant
Petitioner’s motion for a stay. The Court will also close this case for administrative
purposes.
I. BACKGROUND
Petitioner initially was charged in Oakland County, Michigan with assault
with intent to commit murder, felon in possession of a firearm, carrying a concealed
weapon (CCW), and two counts of possession of a firearm during the commission
of a felony (felony firearm). Petitioner pleaded no contest in Oakland County Circuit
Court to a reduced charge of assault with intent to do great bodily harm less than
murder, Mich. Comp. Laws § 750.84, and the three weapon offenses: CCW, Mich.
Comp. Laws § 750.227; felon in possession of a firearm, Mich. Comp. Laws §
750.224f; and the two counts of felony firearm, Mich. Comp. Laws § 750.227b.
Petitioner subsequently moved to withdraw his plea, but the trial court denied his
motion. The court then sentenced Petitioner to 13 to 50 years in prison for the assault
conviction, 3 to 25 years in prison for the felon-in-possession and CCW convictions,
and 2 years for the felony-firearm convictions.
Petitioner applied for leave to appeal, claiming that the trial court abused its
discretion when it denied his motion to withdraw his plea. The Michigan Court of
Appeals granted leave to appeal, but it affirmed Petitioner’s convictions and held
that the trial court did not abuse its discretion when denying Petitioner’s motion to
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withdraw his plea. See People v. Perry, No. 343092, 2019 WL 2063314 (Mich. Ct.
App. May 9, 2019). Petitioner appealed to the Michigan Supreme Court, which
denied leave to appeal on July 28, 2020, because it was not persuaded to review the
questions presented to the court. See People v. Perry, 506 Mich. 852; 946 N.W.2d
257 (2020).
On August 31, 2021, Petitioner filed his habeas corpus petition. The sole
ground for relief in his supporting brief reads:
The trial court abused its discretion when it denied plea withdrawal
under MCR 6.310(B); Mr. Perry has a due process right to plea
withdrawal where he was denied his right to the effective assistance of
counsel, the plea was not understanding, and the plea was coerced.
(ECF No. 1, PageID.17.)
On September 22, 2021, the Court ordered the State to file a response to the
petition by November 28, 2021, see ECF No. 4, and on October 20, 2021, Petitioner
filed his motion to stay and to abey the habeas proceedings, see ECF No. 6. He
seeks a stay while he exhausts state remedies for the following new claims:
I.

Mr. Perry was denied due process under state and federal law
when he was not informed of the maximum possible prison
sentence for his offenses. As a result of the defect in the plea
proceedings, he is entitled to withdraw his plea.

II.

Mr. Perry was denied due process under state and federal law
when he was not informed that his felony firearm sentence was
a mandatory two years, or that it must be served prior to any
other sentences.

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III.

Mr. Perry was denied his Sixth Amendment right to the effective
assistance of counsel during the plea-taking process when
counsel failed to object to the trial court’s failure to advise Perry
of the maximum possible sentence for numerous offenses and
failed to advise him of the mandatory minimum required for
felony firearm. Alternatively, counsel was ineffective for failing
to personally advise Perry of these penalties.

IV.

Appellate counsel provided deficient performance which
resulted in a loss on direct appeal when she failed to raise
significant and obvious issues on direct appeal. This ineffective
assistance constitutes good cause and actual prejudice.

(ECF No. 6, PageID.117-18.) The State has asked the Court to hold its order
requiring a responsive pleading in abeyance pending a ruling on Petitioner’s motion
for a stay. (ECF No. 7.)
II. DISCUSSION
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. 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
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federal habeas corpus petition. Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir.
2009). Petitioner apparently exhausted state remedies for his current claim about
the trial court’s denial of his motion to withdraw his no-contest plea, but he has not
exhausted state remedies for the four claims listed in his motion for a stay.
District courts ordinarily have authority to issue stays. Rhines v. Weber, 544
U.S. 269, 276 (2005). And in Rhines, the Supreme Court approved a “stay and
abeyance” procedure which allows a district court to stay a case and to hold a habeas
petition in abeyance while the petitioner returns to state court to pursue state
remedies for previously unexhausted claims. See id. at 275-79. “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 is available in “limited circumstances,” such as when “there was good
cause for the petitioner’s failure to exhaust his claims first in state court,” the
“unexhausted claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.” Id. at 277-78.
Petitioner’s unexhausted claims are not plainly meritless, and he does not
appear to be engaged in dilatory tactics. What is more, he alleges that his appellate
attorney’s ineffectiveness constitutes “good cause” for not raising significant and
obvious issues on direct appeal.

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Although the Supreme Court addressed a “mixed” petition of exhausted and
unexhausted claims in Rhines, district courts may delay a decision on a habeas
petition with fully exhausted claims when considerations of comity and judicial
economy would be served. Bowling v. Haeberline, 246 F. App’x 303, 306 (6th Cir.
2007) (quoting Nowaczyk v. Warden, N.H. State Prison, 299 F.3d 69, 83 (1st Cir.
2002)). Moreover, a dismissal of this case while Petitioner pursues state remedies
for his unexhausted claims could result in a subsequent petition being barred by the
one-year statute of limitations, 28 U.S.C. § 2244(d)(1).
For all the foregoing reasons, the Court finds that a stay is appropriate in this
case. The Court will grant Petitioner’s motion to stay and to abey this proceeding,
and the Court will postpone the deadline for filing a responsive pleading.
ORDER
IT IS ORDERED that Petitioner’s motion for a stay and to abey the habeas
proceedings (ECF No. 6) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff shall file a motion for relief from
judgment in the state trial court within sixty (60) days of the date of this order if he
has not already filed such a motion.
IT IS FURTHER ORDERED that Petitioner shall file an amended habeas
corpus petition and a motion to re-open this case within sixty (60) days of exhausting
state remedies if he is unsuccessful in state court. He shall use the same case number
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that appears on the first page of this order, and because the amended petition will
replace the initial petition, it must contain 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).
IT IS FURTHER ORDERED that the State’s motion to hold the order for
responsive pleading in abeyance is GRANTED. If necessary, the Court will set a
new deadline for the responsive pleading in a future order.
IT IS FURTHER ORDERED that this case is now closed for administrative
purposes. Nothing in the order shall be deemed an adjudication of Petitioner’s
current claim.
IT IS SO ORDERED.
s/Denise Page Hood
Chief Judge, United States District Court
Dated: November 19, 2021

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