Greer v. Vashaw

Filing 7

OPINION AND ORDER HOLDING IN ABEYANCE The Petition for Writ of Habeas Corpus and ADMINISTRATIVELY CLOSING the Case Signed by District Judge Robert H. Cleland. (LWag)

Case 3:20-cv-12581-RHC-EAS ECF No. 7, PageID.1740 Filed 09/19/22 Page 1 of 7

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________________________________________________
DEMARGIO GREER,
Petitioner,
v.

Case No. 3:20-CV-12581

ROBERT VASHAW,
Respondent,

/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF
HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE
Petitioner Demargio Greer, incarcerated at the St. Louis Correctional Facility in
St. Louis, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his pro se application, Petitioner challenges his conviction in the
Wayne County Circuit Court for third-degree criminal sexual conduct, 1 assault with
intent to do great bodily harm, 2 witness intimidation, 3 and being a third habitual
offender. 4 Respondent filed an answer. As part of the answer, Respondent notes that
the petition contains several claims that were not fully exhausted with the state courts.
In lieu of dismissing the petition without prejudice, the court will hold the petition in
abeyance and stay the proceedings under the terms outlined in this opinion to permit
Petitioner to exhaust these claims.

Mich. Comp. Laws § 750.520d.
Mich. Comp. Laws § 750.84.
3 Mich. Comp. Laws § 750.122(7)(b).
4 Mich. Comp. Laws § 769.11.
1
2

1

Case 3:20-cv-12581-RHC-EAS ECF No. 7, PageID.1741 Filed 09/19/22 Page 2 of 7

I. BACKGROUND
Following Petitioner’s Wayne County Circuit Court conviction, Petitioner’s
conviction was affirmed on appeal. People v. Greer, No. 340335, 2019 WL 1411078
(Mich. Ct. App. Mar. 28, 2019), leave to appeal denied at 933 N.W.2d 274 (Mich. 2019).
On September 14, 2020, Petitioner filed his application for writ of habeas
corpus. 5 Petitioner seeks a writ of habeas corpus on the following grounds:
I. The trial court erred when denying an evidentiary hearing when such a
hearing should be held on the issues of ineffective assistance of counsel
and newly discovered evidence.
II. Greer was denied a fair trial by the court’s decision over objection to grant
joinder when the allegations in the second case (witness intimidation) would
sway the jury to convict on the allegations made in the initial case.
III. Greer was denied a fair trial and the right to present a defense when the
trial court denied admission of a motive for [a witness] to fabricate a story.
IV. Greer is entitled to resentencing because the statutory sentencing
guidelines were misscored as to offense variable 10, which affected the
statutory sentencing guideline range.
V. Greer is entitled to relief from judgment, where he has clearly
demonstrated good cause, actual prejudice, a miscarriage of justice, and
actual innocence on the basis of ineffective assistance of appellate counsel
and procedural misconduct.
II. DISCUSSION
Respondent argues that the petition is subject to dismissal because Petitioner
has yet to exhaust a portion of his first claim and none of the issues contained in his fifth
claim with the state courts.

Under the prison mailbox rule, the court assumes that Petitioner filed his habeas
petition on September 14, 2020, the date that it was signed and dated. See Towns v.
United States, 190 F.3d 468, 469 (6th Cir. 1999).
5

2

Case 3:20-cv-12581-RHC-EAS ECF No. 7, PageID.1742 Filed 09/19/22 Page 3 of 7

As a general rule, a state prisoner seeking federal habeas relief must first
exhaust his available state court remedies before raising a claim in federal court. 28
U.S.C. § 2254(b) and (c). See Picard v. Connor, 404 U. S. 270, 275-78 (1971). The
Antiterrorism and Effective Death Penalty Act (AEDPA) preserves the traditional
exhaustion requirement, which mandates dismissal of a habeas petition containing
claims that a petitioner has a right to raise in the state courts but has failed to do so.
See Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999). Although exhaustion
is not a jurisdictional matter, “it is a threshold question that must be resolved” before a
federal court can reach the merits of any claim contained in a habeas petition. See
Wagner v. Smith, 581 F. 3d 410, 415 (6th Cir. 2009). Therefore, each claim must be
reviewed by a federal court for exhaustion before any claim may be reviewed on the
merits by a district court. Id. Federal district courts must dismiss mixed habeas petitions
which contain both exhausted and unexhausted claims. See Pliler v. Ford, 542 U.S.
225, 230 (2004)(citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)).
Respondent initially argues that Petitioner failed to exhaust a portion of his
ineffective assistance of counsel claim alleging that his trial counsel labored under a
conflict of interest.
On Petitioner’s appeal of right, Petitioner’s appellate counsel made fleeting
references to trial counsel having a conflict of interest in his motion for an evidentiary
hearing (ECF No. 6-15, PageID. 1130-31) and in his appellate brief. (ECF No. 6-15,
PageID. 1219-24). Appellate counsel’s references to a conflict of interest, however, were
sporadic and conclusory and offered no factual allegations to support the conflict of
interest claim.
3

Case 3:20-cv-12581-RHC-EAS ECF No. 7, PageID.1743 Filed 09/19/22 Page 4 of 7

A claim may be considered “fairly presented” only if the petitioner asserted both
the factual and legal basis for his claim in the state courts. McMeans v. Brigano, 228 F.
3d 674, 681 (6th Cir. 2000). The doctrine of exhaustion mandates that the same claim
under the same theory be presented to the state courts before it can be raised in a federal
habeas petition. Wong v. Money, 142 F. 3d 313, 322 (6th Cir. 1998). “Even the same
claim, if raised on different grounds, is not exhausted for the purpose of federal habeas
review.” Rayner v. Mills, 685 F.3d 631, 643 (6th Cir. 2012).
Petitioner’s conflict of interest claim is unexhausted because, although he stated
the legal basis of his claim, he failed to state, with any specificity, the factual basis of the
claim. Accordingly, the conflict of interest claim was not fairly presented to the state
courts. See Wagner v. Smith, 581 F.3d at 416. This portion of Petitioner’s first claim is
unexhausted.
None of the claims contained in Petitioner’s fifth claim were exhausted with the
state courts. The actual innocence, prosecutorial misconduct, and ineffective assistance
of appellate counsel claims were never presented on Petitioner’s appeal of right.
To the extent that Petitioner challenges the sufficiency of evidence in his fifth
claim, Petitioner admits that he raised that claim for the first time in his application for
leave to appeal to the Michigan Supreme Court. (ECF No. 1, PageID. 3). Raising a
claim for the first time before the state courts on discretionary review does not amount
to a “fair presentation” of the claim to the state courts for exhaustion purposes. See
Castille v. Peoples, 489 U.S. 346, 351 (1989). Petitioner failed to raise his sufficiency of
evidence claim on his direct appeal with the Michigan Court of Appeals, thus, his
subsequent presentation of this claim to the Michigan Supreme Court does not satisfy
4

Case 3:20-cv-12581-RHC-EAS ECF No. 7, PageID.1744 Filed 09/19/22 Page 5 of 7

the exhaustion requirement for habeas purposes. See Skinner v. McLemore, 425 F.
App’x. 491, 494 (6th Cir. 2011); Farley v. Lafler, 193 F. App’x. 543, 549 (6th Cir. 2006).
Although a federal court has the discretion to deny an unexhausted claim on the
merits, as respondent urges, this court declines to do so because respondent failed to
show that the claims are plainly meritless. See e.g. Wagner v. Smith, 581 F. 3d 410,
419-20 (6th Cir. 2009); See also Hickey v. Hoffner, 701 F. App’x. 422, 426 (6th Cir.
2017).
To avoid problems with the one year statute of limitations contained in 28 U.S.C.
§ 2244(d)(1), a federal court may opt 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). The court holds the petition in
abeyance. Petitioner must present his claims in state court by filing a post-conviction
motion for relief from judgment with the state trial court within sixty days from the date of
this Order. See e.g. Wagner v. Smith, 581 F. 3d at 419. Further, he must ask this court
to lift the stay within sixty days of exhausting his state court remedies. Failure to 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).

6

Petitioner’s method of properly exhausting these claims in the state courts would
be through filing a motion for relief from judgment with the Wayne County Circuit Court
under M.C.R. 6.502. See Wagner v. Smith, 581 F. 3d 410, 419 (6th Cir. 2009). Denial

The court has the discretion to stay the petition and hold it in abeyance even though
Petitioner did not specifically request the court to do so. See e.g. Banks v. Jackson, 149
F. App’x. 414, 422, n. 7 (6th Cir. 2005).
6

5

Case 3:20-cv-12581-RHC-EAS ECF No. 7, PageID.1745 Filed 09/19/22 Page 6 of 7

of a motion for relief from judgment is reviewable by the Michigan Court of Appeals and
the Michigan Supreme Court upon the filing of an application for leave to appeal. M.C.R.
6.509; M.C.R. 7.203; M.C.R. 7.302. Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich.
1997). Petitioner, in fact, would be required to appeal the denial of his post-conviction
motion to the Michigan Court of Appeals and the Michigan Supreme Court in order to
properly exhaust the claims that he would raise in his post-conviction motion. See e.g.
Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002).
III. CONCLUSION
IT IS ORDERED that Petitioner may file a motion for relief from judgment with the
state court within sixty (60) days of receipt of this court’s order. If Petitioner fails to
file a motion for relief from judgment with the state courts by that date, the court will
dismiss his petition without prejudice.
If Petitioner files a motion for relief from judgment, he shall notify the court that
such motion papers have been filed in state court. The case will then be held in
abeyance pending the Petitioner's exhaustion of the claims. Petitioner shall file a
motion to lift the stay using the same caption and case number within sixty (60) days
after the conclusion of the state court post-conviction proceedings. Petitioner is
free at that time to file an amended habeas petition containing the arguments that he
raised before the state courts with respect to these claims.
To avoid administrative difficulties, IT IS FURTHER ORDERED that the Clerk of
Court is DIRECTED to administratively 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.
6

Case 3:20-cv-12581-RHC-EAS ECF No. 7, PageID.1746 Filed 09/19/22 Page 7 of 7

IT IS FURTHER ORDERED that upon receipt of a motion to reinstate the habeas
petition following exhaustion of state remedies, the court may order the Clerk to reopen
this case for statistical purposes.

Dated: September 19, 2022

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, September 19, 2022, by electronic and/or ordinary mail.
S/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\Cleland\CHD\2254\20-12581.GREER.Abeyance.db.docx

7