Lewis v. Rivard

Filing 6

OPINION and ORDER Granting Petitioner's Motion to Stay the Proceedings, Holding the Petition for Writ of Habeas Corpus in Abeyance, and Administratively Closing the Case. Signed by District Judge Linda V. Parker. (Loury, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY LEWIS,
Petitioner,

Civil Case No. 4:14-cv-13109
Honorable Linda V. Parker

v.
STEVEN RIVARD,
Respondent,
_________________________________/
OPINION AND ORDER GRANTING PETITIONER’S MOTION TO STAY
THE PROCEEDINGS, HOLDING THE PETITION FOR WRIT OF
HABEAS CORPUS IN ABEYANCE, AND ADMINISTRATIVELY
CLOSING THE CASE.
On August 12, 2014, Petitioner Jerry Lewis (“Petitioner”), confined at the
St. Louis Correctional Facility in St. Louis, Michigan, filed a pro se petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his
state court convictions for armed robbery, car-jacking, unlawfully driving away an
automobile, carrying a concealed weapon, carrying a firearm during the
commission of a felony, and felon in possession of a firearm. On the same date
that he filed his petition, Petitioner also filed a motion to hold this action in
abeyance to permit him to complete post-conviction proceedings in the state courts.
Apparently Petitioner is attempting to exhaust the claims that he asserts in his
habeas application:

I. The district court and the circuit court were without jurisdiction to
hear and determine this case where the complaint failed to establish
and give notice that there was reason to believe that Defendant Lewis
committed the crimes charged.
II. Defendant was denied his constitutional right to the effective
assistance of appellant (sic) counsel where she failed to raise (A) trial
counsel’s ineffectiveness where he (i) failed to quash the
constitutionally defective complaint upon which jurisdiction was
predicated and (ii) failed to investigate the case determinative defense
of “Claim of Right.”
For the reasons stated below, the Court grants Petitioner’s motion to stay on the
conditions outlined herein. The Court also will administratively close the case.
I. Background
On November 28, 2011, Petitioner pleaded guilty to the above offenses in
the Circuit Court for Wayne County, Michigan. The state court sentenced
Petitioner on December 14, 2011. The Michigan Court of Appeals affirmed
Petitioner’s conviction on September 26, 2012. People v. Lewis, No. 311983
(Mich. Ct. App.). The Michigan Supreme Court denied Petitioner leave to appeal
on April 29, 2013, because it was not persuaded that the questions presented
should be reviewed by the Court. People v. Lewis, 493 Mich. 968 (Mich. 2013).
On April 14, 2014, Petitioner filed a post-conviction motion for relief from
judgment in the state trial court pursuant to Michigan Court Rule 6.500, in which
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he raised the claims that are contained in his current petition. The trial court
denied the motion on July 3, 2014. People v. Lewis, No. 11-007865-01 (Wayne
Cnty. Cir. Ct., July 3, 2014). When he filed his present habeas corpus petition,
Petitioner had not yet filed an appeal of the trial court’s decision with the Michigan
Court of Appeals; however, he indicates that he is in the process of doing so. (See
Pet. at 12.)
II. Discussion
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 must first exhaust all state remedies. See O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999) (“state prisoners must give the state courts one full fair
opportunity to resolve any constitutional issues by invoking one complete round of
the State’s established appellate review process”); Rust v. Zent, 17 F.3d 155, 160
(6th Cir. 1994). To satisfy this requirement, the claims must be “fairly presented”
to the state courts, meaning that the prisoner 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); Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).
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). A Michigan prisoner
must properly present each issue he seeks to raise in a federal habeas proceeding to
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both the Michigan Court of Appeals and the Michigan Supreme Court to satisfy the
exhaustion requirement. See Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
By his own admission, Petitioner has failed to exhaust the claims he asserts
in his pending application for habeas relief. Generally, the district court is required
to dismiss habeas petitions containing claims that have not been exhausted. See 28
U.S.C. § 2254(b)(1)(A). A federal district court, however, has discretion to stay a
petition to allow a petitioner to present unexhausted claims to the state courts. See
Rhines v. Weber, 544 U.S. 269, 276 (2005). “Stay and abeyance” is available in
only “limited circumstances,” such as where the one-year statute of limitations
poses a concern and the petitioner demonstrates “good cause” for the failure to
exhaust state remedies before proceeding in federal court, has not engaged in
intentionally dilatory litigation tactics, and the unexhausted claims are not “plainly
meritless.” Id. at 277.
The Court finds it appropriate to grant Petitioner’s request to hold his
petition in abeyance while he exhausts the claims raised in his post-conviction
motion in the state courts. The outright dismissal of the petition, albeit without
prejudice, might result in preclusion of consideration of Petitioner’s claims in this
Court due to the expiration of the one-year statute of limitations contained in the
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Antiterrorism and Effective Death Penalty Act (“AEDPA”). See 28 U.S.C.
§ 2244(d)(1). Assuming that Petitioner did not seek a petition for writ of certiorari
with the United States Supreme Court, all but sixteen days of the one-year
limitations period had run when Petitioner filed his post-conviction motion in state
court.1 Further, the Court cannot conclude that Petitioner’s unexhausted claims are
plainly meritless or that he has engaged in “intentionally dilatory tactics.”
The Supreme Court advised in Rhines that when a district court determines
that a stay is appropriate pending exhaustion of state court remedies, the court
“should place reasonable time limits on a petitioner’s trip to state court and back.”
544 U.S. at 278. To ensure that Petitioner does not delay in exhausting his state
court remedies, the Court imposes the time limits set forth below within which
Petitioner must proceed.
For the reasons stated, Petitioner’s motion to stay is GRANTED. The
proceedings in this case are stayed pending Petitioner’s exhaustion of his state
court remedies provided that Petitioner (a) returns to this Court within sixty (60)
days of exhausting his state court remedies and (b) files IN THIS CASE (i.e., with

1

Pursuant to AEDPA, “[t]he time during which a properly filed application
for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation
under this subsection.” 28 U.S.C. § 2244(d)(2).
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the above case caption and case number) a motion to lift the stay.
To avoid administrative difficulties, the Clerk shall 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.
SO ORDERED.
S/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: September 9, 2014
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, September 9, 2014, by electronic and/or
U.S. First Class mail.
S/ Richard Loury
Case Manager

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