Jackson v. Smith

Filing 15

Opinion and ORDER Granting 14 Petitioner's Motion to Stay And Administrateively Closing Case. Signed by District Judge Gershwin A. Drain. (Bankston, T)

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

Civil Action No. 4:12-cv-11463

WILLIE SMITH,

HON. GERSHWIN A. DRAIN

Respondent.
/
OPINION AND ORDER GRANTING PETITIONER’S MOTION
TO STAY AND ABEY AND ADMINISTRATIVELY CLOSING CASE
I. INTRODUCTION
This is a habeas case filed by a Michigan prisoner under 28 U.S.C. § 2254. Petitioner
Michael Jackson is incarcerated by the Michigan Department of Corrections, currently housed at the
Carson City Correctional Facility in Carson City, Michigan. On May 1, 2009, a jury convicted him
of felon-in-possession, possession of a short-barreled shotgun, and two counts of felony firearm.
On August 28, 2009, the trial court sentenced him to concurrent sentences of thirty-four months to
ten years for his convictions for felon-in-possession and possession of a short-barreled shotgun. He
will serve those sentences after he first serves his two-year sentences for each of his felony-firearm
convictions. Petitioner’s convictions occurred in the Circuit Court in Bay County, Michigan.
Petitioner filed this habeas petition alleging that his convictions and sentences are
unconstitutional because there was insufficient evidence to convict him and the identification
procedure used was improper. Pet’r’s Pet. for Writ of Habeas Corpus, Apr. 2, 2012, ECF No. 1.
Respondent filed his answer and the Rule 5 materials on October 12, 2012. Resp’t’s Resp., Oct. 12,
2012, ECF Nos. 6 & 7. Subsequently, on May 24, 2013, Petitioner filed a Motion to Stay and Abey.

See Dkt. No. 14. He asks the Court for a stay so he can return to state court to exhaust claims
concerning his felon-in-possession conviction and the effectiveness of his appellate counsel. For
the reasons stated, the Court grants his motion.
II. DISCUSSION
Following his convictions and sentencing, Petitioner filed his direct appeal with the
Michigan Court of Appeals, raising claims concerning errors in the trial court, double jeopardy, the
sufficiency of the evidence, and the use of an improper identification procedure. On January 20,
2011, the Court of Appeals affirmed his convictions and sentences. See People v. Jackson, No.
294112, 2011 WL 192390, at *1 (Mich. Ct. App. Jan. 20, 2011). The Court of Appeals also denied
his motion for reconsideration. People v. Jackson, No. 294112 (Mich. Ct. App. Mar. 8, 2011).
Petitioner did not appeal the Court of Appeals’s decision to the Michigan Supreme Court. Nor did
he file a petition for a writ of certiorari with the United States Supreme Court or a motion for relief
from judgment with the state trial court. Instead, he filed the present habeas action.
A prisoner filing a petition for a writ of habeas corpus under section 2254 must first exhaust
all state remedies. See 28 U.S.C. § 2254(b)(1). The exhaustion 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 v. Boerckel, 526 U.S. 838, 845 (1999);
Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). A prisoner ‘fairly presents’ his claims to the state
courts by citing a provision of the Constitution, federal decisions using constitutional analysis, or
state decisions employing constitutional analysis in similar fact patterns. Franklin v. Rose, 811 F.2d
322, 326 (6th Cir. 1987); see also Prather v. Reese, 822 F.2d 1418, 1420 (6th Cir. 1987) (holding
that the state courts must have had the opportunity to pass on a defendant’s claims of constitutional

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violations) (citations omitted). 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. Mich. 2002). The petitioner bears the burden of showing that state-court remedies
have been exhausted. Rust, 17 F.3d at 160.
The Michigan Court Rules provide a process by which Petitioner may raise his unexhausted
claims. He can file a motion for relief from judgment pursuant to Michigan’s court rule 6.500 et
seq., which allows the trial court to appoint counsel, solicit a response from the prosecutor, expand
the record, permit oral argument, and conduct an evidentiary hearing on his claims. Petitioner may
appeal the trial court’s disposition of his motion for relief from judgment to the Michigan Court of
Appeals and Michigan Supreme Court. Thus, Petitioner’s unexhausted claims should be addressed
to, and considered by, the state courts in the first instance.
A federal district court has discretion in “limited circumstances” to stay a habeas action to
allow a petitioner to present his or her unexhausted claims to the state courts and then return to
federal court on a perfected petition. See Rhines v. Weber, 544 U.S. 269, 277 (2005). For example,
stay and abeyance may be appropriate when a habeas petitioner could be precluded from seeking
habeas relief due to the application of the one-year statute of limitations. Id. at 276. Stay and
abeyance is only appropriate when a district court determines that the petitioner has shown good
cause for the failure to first exhaust the claims in state courts, the petitioner’s unexhausted claims
are not plainly meritless, and the petitioner has not engaged in intentionally dilatory litigation
tactics. Id. at 277; see also Anthony v. Palmer, No. 10-CV-13312, 2011 WL 1532162, at *1 (E.D.
Mich. Apr. 22, 2011) (a federal district court has authority to abate a habeas action pending
resolution of state post-conviction proceedings) (citing Brewer v. Johnson, 139 F.3d 491, 493 (5th

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Cir.1998)). The United States Court of Appeals for the Sixth Circuit has advised that it is preferable
for a district court to hold further proceedings on a habeas petition pending exhaustion, rather than
dismissing the petition without prejudice. Griffin v. Rogers, 308 F.3d 647, 652 n. 1 (6th Cir. 2002);
see also Palmer v. Carlton, 276 F.3d 777, 780-81 (6th Cir. 2002) (same).
Here, the Court finds that Petitioner has sufficiently demonstrated the need for a stay. It
appears that his claims are not exhausted, and the one-year limitations period applicable to habeas
actions would pose a problem for him, if this Court were to dismiss the petition to allow further
exhaustion of state remedies. 28 U.S.C. § 2244(d)(1). Further, Petitioner’s claims do not appear
to be “plainly meritless.” Rhines, 544 U.S. at 277. Nor is there an indication of intentional delay.
Therefore, the Court grants Petitioner’s motion and stays this case pending his return to the
state courts to exhaust his unexhausted claims. However, the Supreme Court in Rhines has
cautioned that a district court’s discretion in structuring the stay is limited by the timeliness concerns
in the AEDPA. The Rhines Court also stated that a petition should not be stayed indefinitely, and
the stay should be conditioned on the pursuit of state remedies within a certain time period after the
stay is entered, with the prisoner returning to federal court within a similarly brief period. Id. at 27778. The conditions of the stay are outlined as follows. Petitioner must file his motion for
post-conviction relief with the appropriate state court, within sixty days from the date of the Court’s
order, and he must return to this Court within sixty days of exhausting his state-court remedies. See
Palmer, 276 F.3d at 781 (approving similar conditions on stay). If 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.” Id.

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III. ORDER
Accordingly, Petitioner’s Motion to Stay and Abey [#14] is GRANTED. The Court further
orders that this action is stayed so Petitioner can exhaust his state-court remedies as to the claims
stated in his motion. This stay is conditioned upon Petitioner presenting his unexhausted claims to
the state courts within sixty days from the date of this order, providing he has not already done so,
and upon his returning to this Court with an amended petition, using the same caption and case
number, within sixty days of exhausting his state remedies. If he fails to comply with those
conditions, his case may be subject to dismissal.
The Court further orders the Clerk of the Court to 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
Petitioner’s claims.
SO ORDERED.
/s/Gerswhin A Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: June 5, 2013

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