DeCarlo v. State of Michigan

Filing 7

ORDER denying #3 Petitioner's Motion to Stay Proceedings and Hold Petition in Abeyance. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DOMINIC DECARLO,
Petitioner,
v.

Case No. 3:21-cv-11370

STATE OF MICHIGAN,
Respondent.
_______________________________________/
ORDER DENYING PETITIONER’S MOTION TO STAY PROCEEDINGS AND HOLD
PETITION IN ABEYANCE (ECF No. 3)
Petitioner Dominic DeCarlo filed a pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his state court convictions on the same
grounds he presented to the Michigan courts on direct review. Presently before the
court is Petitioner’s motion to stay proceedings and hold the petition in abeyance. The
motion restates the claims presented on direct review, but it fails to identify any
unexhausted claims Petitioner wishes to raise on state collateral review. The petition
likewise suggests that Petitioner completed direct review when the Michigan Supreme
Court denied leave to appeal on April 27, 2021. (ECF No. 1, PageID.3.)
A federal district court has discretion to stay a petition to allow a petitioner to
present unexhausted claims to the state courts and then return to federal court on a
perfected petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance
is available, however, only when the one-year statute of limitations poses a concern, the
petitioner demonstrates “good cause” for the failure to exhaust state remedies before

proceeding in federal court, the petitioner has not engaged in intentionally dilatory
litigation tactics, and the unexhausted claims are not “plainly meritless.” Id. at 277.
Here, Petitioner completed direct review on April 27, 2021. The statute of
limitations therefore starts running around July 27, 2021. See 28 U.S.C. §
2244(d)(1)(A). As the limitations period has not even begun, it does not pose a concern.
Additionally, Petitioner fails to identify the existence of any unexhausted claims, let
alone claims that are not plainly meritless. Accordingly,
IT IS ORDERED that Petitioner’s motion to stay (Dkt. # 3) is DENIED.

Dated: July 15, 2021

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, July 15, 2021, by electronic and/or ordinary mail.
S/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
S:\Cleland\Cleland\JUDGE'S DESK\C3 ORDERS\21-11370.DECARLO.Deny Stay.bb.chd.docx