Hudgins v. Berguis
OPINION AND ORDER Granting Petitioner's 8 Motion to Amend Habeas Petition, Holding the 1 Petition for Writ of Habeas Corpus in Abeyance and Administratively Closing the Case. Signed by District Judge Mark A. Goldsmith. (Goltz, D)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil Case No. 11-CV-15376
HON. MARK A. GOLDSMITH
OPINION AND ORDER (1) GRANTING PETITIONER'S MOTION TO AMEND HABEAS
PETITION, (3) HOLDING THE PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE,
and (3) ADMINISTRATIVELY CLOSING THE CASE
Petitioner Lytell Hudgins is a state inmate incarcerated at the Brooks Correctional Facility in
Muskegon, Michigan, pursuant to convictions for car jacking, armed robbery, attempted receiving and
concealing stolen property, attempted receiving a stolen motor vehicle, and attempted unlawful driving
away a motor vehicle. He filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254,
claiming: (1) there was insufficient evidence presented at his trial to sustain his armed robbery and car
jacking convictions; and (2) the prosecutor committed misconduct during closing argument.
Respondent filed his answer to the petition, Petitioner filed a motion to amend his petition to include
two additional claims: (3) trial counsel was ineffective for failing to advise him to accept a plea
bargain; and (4) appellate counsel was ineffective for failing to raise this new claim in the Michigan
Court of Appeals.
The Court will grant the motion to amend the petition to include these two new unexhausted
claims. The Court will also stay the petition and hold it in abeyance while Petitioner presents his
unexhausted claims to the state courts.1
Following Petitioner=s conviction, he filed an application for leave to appeal in the Michigan
Court of Appeals, raising two claims: (1) insufficiency of the evidence; and (2) prosecutorial
The Michigan Court of Appeals denied leave to appeal Afor lack of merit in the grounds
presented.@ People v. Hudgins, No. 299536, Order (Mich. Ct. App. Feb. 25, 2011).
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court. The
application raised the same two claims he presented to the court of appeals, and it added a claim of
ineffective assistance of counsel. The Michigan Supreme Court denied leave to appeal. People v.
Hudgins, 803 N.W.2d 327 (Mich. 2011).
Petitioner then filed the present habeas petition, raising the two claims presented to the court
After Respondent filed an answer, he moved to amend the petition to include claims of
ineffective assistance of trial and appellate counsel.
Petitioner moves to amend his petition to add two unexhausted claims. Federal Rule of Civil
This Court has the discretion to stay the petition and hold it in abeyance even though
Petitioner did not specifically request this Court to do so. See e.g., Banks v. Jackson, 149 F. App=x
414, 422, n.7 (6th Cir. 2005).
Procedure 15 provides that the Court should freely allow a party to amend when justice so requires.
Fed. R. Civ. P. 15(a)(2).
Here, Respondent has already filed an answer addressing Petitioner=s
The Court concludes, however, that Respondent will not be prejudiced by
allowing Petitioner to amend his brief to add these additional arguments because the Court will stay
the case to allow Petitioner to exhaust his new claims.
If Petitioner does not obtain relief in the state
courts and moves to re-open this case, Respondent will be given an opportunity to file an amended
The doctrine of exhaustion of state remedies requires state prisoners to Afairly present@ their
claims as federal-constitutional issues in the state courts before raising those claims in a federal
habeas-corpus petition. See 28 U.S.C. ' 2254(b)(1)(A) and (c); O=Sullivan v. Boerckel, 526 U.S.
838, 842 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000).
requirement is satisfied if a prisoner invokes one complete round of the state=s established appellate
review process, including a petition for discretionary review to a state supreme court. O=Sullivan,
526 U.S. at 845.
A Michigan prisoner must present each ground to both Michigan appellate courts
before seeking federal habeas-corpus relief. See Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D.
Because Petitioner only presented his ineffective assistance of counsel claims to the
Michigan Supreme Court but not to the Michigan Court of Appeals, the claims are unexhausted.
Petitioner still has a procedure available to exhaust these claims because he has not yet filed a motion
for relief from judgment under Michigan Court Rule 6.500 et. seq.
A petition that contains unexhausted claims is subject to dismissal without prejudice.
Zent, 17 F.3d 155, 160 (6th Cir. 1994).
A federal court may stay a federal habeas petition and hold
further proceedings in abeyance pending resolution of state court post-conviction proceedings,
however, if (1) outright dismissal of a habeas petition would jeopardize the timeliness of a future
petition, (2) there is good cause for the petitioner=s failure to exhaust those claims, (3) the unexhausted
claims are not Aplainly meritless,@ and (4) Athere is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.@ Rhines v. Weber, 544 U.S. 269, 278 (2005).
First, in this case, the outright dismissal of the petition, even without prejudice, may preclude
future consideration of Petitioner=s claims in this Court due to the expiration of the statute of
limitations. See 28 U.S.C. ' 2241(d)(1).
A federal application for habeas corpus relief does not
statutorily toll the limitations period. Duncan v. Walker, 533 U.S. 167, 172 (2001).
the time during which the present petition had been pending in this court might be counted toward the
limitations period if the petition were dismissed and then re-filed.
Next, the Supreme Court did not define Agood cause@ in Rhines, nor has the Sixth Circuit done
See Bates v. Knab, 2011 WL 2785244, at *5 (S.D. Ohio July 15, 2011).
A number of federal
courts have concluded that the Rhines good cause requirement is less stringent than the good cause
showing required in the context of procedural default. See, e.g., Lockridge v. Ludwick, 2009 WL
5217592, at *3 (E.D. Mich. Dec. 28, 2009) (holding that Agood cause under Rhines is something less
than the cause needed to excuse a procedural default@). Petitioner states that his unexhausted claims
were not presented in state court because of ineffective assistance of appellate counsel.
allegation is true, then Petitioner will have shown good cause for failing to have exhausted his
ineffective assistance of trial counsel claim.
Next, the Court also must also determine whether Petitioner=s unexhausted claims are Aplainly
meritless.@ In Rhines, the Supreme Court did not establish a standard for determining whether a
petitioner=s claims are Aplainly meritless.@ Most courts applying the standard do so in conclusory
fashion without weighing or even considering the evidence. See Anthony v. Palmer, 2011 WL
1532162, at *2 (E.D. Mich. Apr. 22, 2011) (granting stay under Rhines and holding that unexhausted
claims are potentially meritorious with no analysis of merits of the claims); Wengorovius v. Scutt,
2009 WL 2849577, at *3 (E.D. Mich. Sept. 1, 2009) (granting stay and determining that unexhausted
claims are not Aplainly meritless@ based upon an Ainitial review of the substance of the unexhausted
issues@ with no further discussion or analysis).
counsel raises a constitutional claim.
A violation of the right to the effective assistance of
Thus, if supported by sufficient evidence, Petitioner=s
unexhausted claims are not plainly meritless.
Finally, Petitioner does not appear to be engaging in intentionally dilatory litigation tactics.
Therefore, the Court stays further proceedings in this matter pending exhaustion of the unexhausted
When a district court determines that a stay is appropriate pending exhaustion of state court
remedies, the district court should ensure that Petitioner does not delay in exhausting his state court
remedies and impose time limits within which Petitioner must proceed. See Palmer v. Carlton, 276
F.3d 777, 781 (6th Cir. 2002).
Petitioner must present his unexhausted claims in state court within
60 days from the date of this order by filing a motion for relief from judgment in the state trial court.
See id. Further, he must ask this Court to lift the stay within 60 of exhausting his state court
AIf the conditions of the stay are not met, the stay may later be vacated nunc pro
tunc as of the date the stay was entered, and the petition may be dismissed.@ Palmer, 276 F.3d at 781
(internal quotation omitted).
For the reasons stated above, Petitioner=s motion to amend his petition is granted, and the
petition is stayed and held in abeyance pending exhaustion of Petitioner=s new claims.
shall file a motion for relief from judgment in state court within 60 from the date of this order and a
motion to lift the stay and amended petition in this Court within 60 days after the conclusion of the
state court proceedings. In addition, to avoid administrative difficulties, the Clerk of Court shall
close this case for statistical purposes only.
Nothing in this order or in the related docket entry shall
be considered a dismissal of this matter.
Upon receipt of a motion to lift the stay following
exhaustion of state remedies, the Court may order the Clerk to reopen this case for statistical purposes.
June 10, 2013
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and
any unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on June 10, 2013.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
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