Durham v. Palmer

Filing 11

ORDER Granting Petitioner's 10 Motion to Stay. Signed by District Judge Mark A. Goldsmith. (Goltz, D)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TRAMMANUEL DURHAM, #614750,
Petitioner,
CASE NO. 13-CV-14383
v.
HON. MARK A. GOLDSMITH
CARMEN PALMER,
Respondent.
/
ORDER GRANTING PETITIONER’S MOTION TO STAY (Dkt. 10)
This is a habeas case brought pursuant to 28 U.S.C. § 2254.

Michigan prisoner

Trammanuel Durham (“Petitioner”) was convicted of assault with intent to commit murder,
Mich. Comp. Laws § 750.83, conspiracy to commit armed robbery, Mich. Comp. Laws §
750.529/750.175a, attempted armed robbery, Mich. Comp. Laws § 750.529/750.92, and
possession of a firearm during the commission of a felony, Mich. Comp. Laws § 750.227b,
following a jury trial in the Wayne County Circuit Court. He was sentenced to 17.5-to-50 years’
imprisonment on the assault conviction, a concurrent term of 9-to-20 years’ imprisonment on the
conspiracy conviction, a concurrent term of 6 months-to-5 years’ imprisonment on the attempted
armed robbery conviction, and a consecutive term of 2 years’ imprisonment on the felony
firearm conviction in 2010.

In his pleadings, Petitioner raises claims concerning judicial bias,

the admission of other acts evidence, the effectiveness of trial counsel, and cumulative error.
Pet. (Dkt. 1).
The matter before the Court is Petitioner’s motion to stay the proceedings and hold his
habeas petition in abeyance so that he can return to state court to exhaust remedies on additional

claims concerning the effectiveness of trial and appellate counsel.

Pet. Mot. (Dkt. 10).

Respondent has recently filed an answer to the petition contending that it should be denied. See
Resp. Br. (Dkt. 9).
The doctrine of exhaustion of state remedies requires state prisoners to “fairly present”
their claims as federal constitutional issues in the state courts before raising those claims in a
federal habeas petition. 28 U.S.C. § 2254(b)(1)(A) and (c); O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). Federal law provides that a habeas petitioner is only entitled to relief if he can
show that the state court adjudication of his claims resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established federal law as determined by the
Supreme Court of the United States. 28 U.S.C. § 2254(d). The state courts must be given an
opportunity to rule upon all of Petitioner’s claims before he can present those claims on habeas
review. Otherwise, this Court is unable to apply the standard found at 28 U.S.C. § 2254.
The exhaustion requirement is satisfied if a prisoner invokes one complete round of the
state’s established appellate review process.

O’Sullivan, 526 U.S. at 845.

To satisfy the

exhaustion requirement, the claims must be “fairly presented” to the state courts, meaning that
the petitioner must have asserted both the factual and legal bases for the claims in the state
courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The claims must also be
presented to the state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d 365,
368 (6th Cir. 1984). For a Michigan prisoner, each issue must be presented to both the Michigan
Court of Appeals and the Michigan Supreme Court to satisfy the exhaustion requirement. Hafley
v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The burden is on the petitioner to prove
exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

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The Michigan Rules of Court provide a process through which Petitioner may raise his
unexhausted claims. See M.Ct.R. 6.500 et seq. (establishing procedures for post-appeal relief).
He may then appeal the trial court’s decision to the state appellate courts as necessary.
Petitioner’s unexhausted claims should first be addressed to, and considered by, the Michigan
courts.
A federal district court has discretion to stay a habeas petition to allow a petitioner to
present unexhausted claims to the state courts in the first instance and then return to federal court
on a perfected petition. Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is
available only in “limited circumstances” such as when the one-year statute of limitations
applicable to federal habeas actions poses a concern, and when the petitioner demonstrates “good
cause” for the failure to exhaust state court remedies before proceeding in federal court, the
unexhausted claims are not “plainly meritless,” and the petitioner has not engaged in
intentionally dilatory tactics. Id. at 277.
In this case, Petitioner has shown the need for a stay. He wishes to pursue new claims
which have not been presented to the state courts. The one-year limitations period applicable to
federal habeas actions, 28 U.S.C. § 2244(d)(1), could pose a problem if the Court were to
dismiss the petition to allow for further exhaustion of state remedies as Petitioner appears to have
filed his petition about two months before the expiration of the one-year period. Additionally,
Petitioner seeks to present new issues and alleges that appellate counsel was ineffective for
failing to previously present them to the state courts, which may provide good cause. Lastly, the
Court finds that the unexhausted claims do not appear to be plainly meritless and there is no
evidence of intentional delay. Therefore, the Court shall hold the petition in abeyance and stay

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the proceedings pending Petitioner’s exhaustion of state court remedies as to the additional,
unexhausted claims.
Accordingly, the Court grants Petitioner’s motion to stay the proceedings and hold the
habeas petition in abeyance. These proceedings are stayed. The stay is conditioned on Petitioner
presenting the unexhausted claims to the state courts within 30 days of the filing date of this
order by filing a motion for relief from judgment with the trial court. See Palmer v. Carlton, 276
F.3d 777, 781 (6th Cir. 2002) (adopting approach taken in Zarvela v. Artuz, 254 F.3d 374, 381
(2d Cir. 2001)). The stay is further conditioned on Petitioner’s return to this Court with a motion
to reopen and amend the petition, using the same caption and case number, within 30 days of
fully exhausting state remedies. Id. Should Petitioner fail to comply with these conditions, the
case may be dismissed.

Lastly, this case is closed for administrative purposes pending

compliance with these conditions. Nothing in this order or in the related docket entry shall be
considered a dismissal or disposition of this matter. Sitto v. Bock, 207 F. Supp. 2d 668, 677
(E.D. Mich. 2002).
SO ORDERED.
Dated: July 23, 2014
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 23, 2014.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager

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