Porter v. Warren

Filing 6

OPINION AND ORDER granting 5 Petitioner's Motion to Hold the Petition for Writ of Habeas Corpus in Abeyance. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
INDIA F. PORTER,
Petitioner,

CASE NO. 4:13-CV-11249
HONORABLE TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE

v.
MILLICENT WARREN,
Respondent.
_______________________________/

OPINION AND ORDER GRANTING PETITIONER'S MOTION TO HOLD
THE PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE (DKT. 5)
This is a habeas corpus case filed by a Michigan prisoner incarcerated at the
Huron Valley Correctional Facility. On December 12, 2002, Petitioner was convicted
after a trial in the Wayne Circuit Court of assault with intent to commit murder, felon
in possession of a firearm, and commission of a felony with a firearm. The trial court
sentenced Petitioner to concurrent terms of 23-to-40 years for the assault and 3-to-7
years for the felon in possession, to be served consecutively with a two-year sentence
for the felony-firearm conviction. Petitioner has filed a motion (Dkt. 5) to stay the
habeas corpus proceeding, to permit her to exhaust her state court remedies with
respect to a claim that her trial attorney was ineffective for failing to advise her to
accept a plea bargain offer. For the reasons stated below, the Court GRANTS
Petitioner’s motion, holds the petition in abeyance and stays the proceedings under the
terms outlined in this opinion to permit Petitioner to exhaust this claim.

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I. BACKGROUND
Following her conviction, Petitioner filed an appeal of right in the Michigan
Court of Appeals. The state appellate court affirmed. People v. Porter, No. 247486
(Mich. Ct. App. June 29, 2004). Petitioner then sought relief in the Michigan Supreme
Court, but that court denied leave to appeal. People v. Porter, No. 126880 (Mich. Sup.
Ct. May 31, 2005).
Following her direct appeal, Petitioner returned to the trial court and filed two
rounds of post-conviction review. She states that she filed her first motion for relief
from judgment in the trial court on August 2, 2006, and that proceeding continued
until relief was denied by the Michigan Supreme Court on April 28, 2008. Petitioner
states that she filed her second motion for relief from judgment, containing her
ineffective assistance of counsel claim, on May 23, 2012. The trial court denied the
motion on October 5, 2012. Petitioner alleges that she is in the process of pursuing
appellate relief on this claim in the state courts.
Petitioner has now filed a motion to stay proceedings in this case. Petitioner
contends that her current claim is based upon the Supreme Court decision in Lafler
v. Cooper, 132 S. Ct. 1376 (2012), where the Supreme Court held that a defense
attorney has a duty to communicate all plea bargains to a defendant and properly
advise the defendant about whether or not she should plead guilty. Petitioner argues
that this case should be applied retroactively to her case and afford her an opportunity
for habeas relief.
II. DISCUSSION

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The instant petition is subject to dismissal, because Petitioner, by her own
admission, has yet to exhaust her claim with the state courts.
As a general rule, a state prisoner seeking federal habeas relief must first
exhaust her available state court remedies before raising a claim in federal court. See
28 U.S.C. § 2254(b) and (c); 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 federal court. Id.
The Court's only concern in dismissing the current petition involves the
possibility that petitioner might be prevented under the one year statute of limitations
contained within 28 U.S.C. § 2244(d)(1) from re-filing a petition for writ of habeas
corpus following the exhaustion of his claim in the state courts.
The U.S. Supreme Court has suggested that a habeas petitioner who is
concerned about the possible effects of his state post-conviction filings on the AEDPA's
statute of limitations could file a "protective" petition in federal court, as petitioner has
done, and then ask for the petition to be held in abeyance pending the exhaustion of

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state post-conviction remedies. See Pace v. DiGuglielmo, 544 U.S. 408, 416
(2005)(citing Rhines v. Weber, 544 U.S. 269 (2005)). A federal court may stay a federal
habeas petition and hold further proceedings in abeyance pending resolution of state
court post-conviction proceedings, provided there is good cause for failure to exhaust
claims and that the unexhausted claims are not "plainly meritless." Rhines, 544 U.S.
at 278.
In the present case, petitioner's claim does not appear to be "plainly meritless."
Moreover, it appears as though Petitioner is arguing that her ineffective assistance of
counsel claim involving her attorney's failure to properly advise her to accept the
prosecutor's plea bargain offer was not ripe until the Supreme Court handed down the
Lafler decision. The mere fact that Petitioner's sole claim is unexhausted does not
prevent this Court from holding his petition in abeyance because "the Supreme Court
has indicated that a petitioner may file a ‘protective’ petition meriting a stay under
Pace (sic) even where only unexhausted claims are at issue." Heleva v. Brooks, 581 F.
3d 187, 192 (3rd Cir. 2009).
The Court is aware that Petitioner has already filed one post-conviction motion
in the Michigan courts. Under MCR 6.502(G)(1), a criminal defendant in Michigan can
typically file only one motion for relief from judgment with regard to a criminal
conviction. See Banks v. Jackson, 149 Fed. Appx. 414, 418 (6th Cir. 2005). However,
MCR 6.502(G)(2) states that a defendant may file a second or subsequent motion based
on a retroactive change in law that occurred after the earlier motion for relief from
judgment or a claim of new evidence that was not discovered before the first such

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motion. Banks, 149 Fed. Appx. at 418. Petitioner contends that her ineffective
assistance of counsel claim is based on a retroactive change in the law by the Supreme
Court. While the state trial court apparently disagreed that Lafler created a new rule,
neither the United States Supreme Court nor the Michigan Supreme Court has yet to
indicate whether Lafler is a new rule of constitutional law that should be applied
retroactively to cases on collateral review. Because there is at least a possibility that
the Michigan appellate courts might permit Petitioner to pursue a second round of
post-conviction review pursuant to the exception contained in MCR 6.502(G)(2) for a
claim based on a retroactive change in the law, a procedural bar to Petitioner pursuing
relief in the state court is not clearly applicable. Therefore, this Court should grant
Petitioner a stay of proceedings to permit her to continue to exhaust her claim in the
state courts. See Banks, 149 Fed. Appx. at 419-20.
However, even where a district court determines that a stay is appropriate
pending exhaustion of state court remedies, the district court "should place reasonable
time limits on a petitioner's trip to state court and back." Rhines, 544 U.S. at 278.
Therefore, to ensure that there are no delays by Petitioner in exhausting her state
court remedies, this Court will impose upon Petitioner time limits within which she
must proceed with her state court post-conviction proceedings. See Palmer v. Carlton,
276 F. 3d 777, 781 (6th Cir. 2002).
In order to avoid Petitioner being time-barred from seeking habeas relief
following her return to the state courts, the Court will hold the present petition in
abeyance. This tolling, however, is conditioned upon Petitioner diligently pursuing

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relief in the state courts, which she has apparently already done, and more
importantly, returning to federal court within sixty days of completing the exhaustion
of her state court post-conviction remedies. See Hargrove v. Brigano, 300 F. 3d 717, 718
(6th Cir. 2002).
III. CONCLUSION
Accordingly, it is ORDERED that the petition for writ of habeas corpus shall be
held in abeyance, pending the completion of Petitioner's state application for
post-conviction review. This tolling is conditioned upon Petitioner re-filing her habeas
petition within sixty (60) days after the conclusion of the state court post-conviction
proceedings. To avoid administrative difficulties, the Court ORDERS the Clerk of
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 this matter. See
Sitto v. Bock, 207 F. Supp. 2d 668, 677 (E.D. Mich. 2002). 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.
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Dated: April 30, 2013
Certificate of Service
I hereby certify that this Order was electronically submitted on April 30,
2013, using the CM/ECF system, which will send notification to each party.
s/A. Chubb
Case Manager

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