Brown v. Curtin

Filing 8

OPINION AND ORDER Granting Petitioner's 7 Motion to Hold the Petition for Writ of Habeas Corpus in Abeyance and Administratively Closing Case. Signed by District Judge Mark A. Goldsmith. (Goltz, D)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CARLOS BROWN,
Petitioner,
CASE NO. 4:13-cv-11685
HONORABLE MARK A. GOLDSMITH
UNITED STATES DISTRICT JUDGE

v.
CINDI S. CURTIN,
Respondent.
_______________________________/

OPINION AND ORDER GRANTING PETITIONER'S MOTION TO HOLD THE
PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE
This is a habeas corpus case filed by Michigan prisoner Carlos Brown. On April 14, 2010,
Petitioner was convicted after a trial in the Oakland Circuit Court of armed robbery, felon in
possession of a firearm, and commission of a felony with a firearm. The petition raises three claims:
(1) the trial court refused to give the jury an adverse witness instruction; (2) there was insufficient
evidence presented at trial to sustain the convictions; and (3) the sentencing guidelines were
incorrectly scored. Petitioner has filed a motion to stay the habeas corpus proceeding to permit him
to exhaust his state court remedies with respect to an additional five claims. For the reasons stated
below, the Court holds the petition in abeyance and stays the proceedings under the terms outlined
in this opinion to permit Petitioner to exhaust this claim.
I. Background
Following his conviction, Petitioner filed an appeal of right in the Michigan Court of
Appeals. The state appellate court affirmed. People v. Brown, No. 299496 (Mich. Ct. App. August
20, 2011). Petitioner then sought relief in the Michigan Supreme Court, but that court denied leave

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to appeal. People v. Brown, No. 144188 (Mich. Sup. Ct. April 18, 2012). Petitioner commenced the
instant habeas proceeding by placing his petition in the prison mail system on April 4, 2013.
Petitioner has now filed a motion to stay proceedings. He wishes to exhaust additional claims
concerning ineffective assistance of counsel, erroneous admission of evidence, and prosecutorial
misconduct.
II. Discussion
Federal district courts are authorized to stay fully exhausted federal habeas petitions pending
the exhaustion of other claims. Moritz v. Lafler, No. 2:07-CV-15369, 2008 WL 783751, at *2 (E.D.
Mich. Mar. 19, 2008) (citing Anthony v. Cambra, 236 F.3d 568, 575 (9th Cir. 2000)). The Sixth
Circuit Court of Appeals has advised that it is preferable for a district court to stay proceedings
pending exhaustion on a habeas petition, rather than dismissing the petition without prejudice.
Griffin v. Rogers, 308 F.3d 647, 652, n. 1 (6th Cir. 2002).
In this case, Petitioner requests a stay because he alleges that he would like to file a motion
for relief from judgment raising additional claims challenging his conviction.
A common circumstance calling for abating a habeas petition arises, when a Petitioner
wishes to exhausted claims, but the dismissal without prejudice of the petition would probably result
in the second petition being time barred by the AEDPA's statute of limitations. See Hargrove v.
Brigano, 300 F. 3d 717, 720-21 (6th Cir. 2002). It appears that Petitioner had less than three months
remaining on the limitations period when he filed his habeas petition. Accordingly, if the Court
were to dismiss without prejudice the petition on exhaustion grounds, Petitioner would find it
difficult to timely file his petition after he finished exhausting his claims.
The U.S. Supreme Court, in fact, has suggested that a habeas petitioner who is concerned

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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 and then ask for the petition to be held in abeyance
pending the exhaustion of state post-conviction remedies. See Pace v. DiGuglielmo, 544 U.S. 408,
416 (2005)(citing Rhines v. Weber, 544 U.S. 269, 278 (2005)). The Court will, therefore, grant
Petitioner’s motion.
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. To ensure that there are no delays
by Petitioner in exhausting his state court remedies, this Court will impose upon Petitioner time
limits within which he must proceed with his state court post-conviction proceedings. See Palmer
v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002).
The Court holds the petition in abeyance to allow Petitioner to pursue post-conviction
proceedings in the state courts. This tolling is conditioned upon Petitioner filing a motion for relief
from judgment in the trial court within sixty (60) days and then returning to federal court within
sixty (60) days of completing the exhaustion of state court post-conviction remedies. Hargrove, 300
F. 3d at 721; See also Geeter v. Bouchard, 293 F. Supp. 2d 773, 775 (E.D. Mich. 2003).
III. ORDER
It is ORDERED that Petitioner's motion to hold the petition for writ of habeas corpus in
abeyance is GRANTED. Petitioner may file a motion for relief from judgment with the state trial
court within sixty (60) days of receipt of this Court's order. If Petitioner fails to do so by that date,
the Court will dismiss his petition without prejudice.
If Petitioner files the motion, he shall notify this Court that such papers have been filed in

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state court. The case will then be held in abeyance pending Petitioner's exhaustion of the claims.
Petitioner shall refile a habeas petition 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.
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 at 677.
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: July 29, 2013
Flint, Michigan

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 July 29, 2013.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

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