Smith v. Jackson
ORDER granting 2 Motion to Stay. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
ROBERT ANTHONY SMITH,
Case No. 16-13475
Honorable Terrence G. Berg
OPINION AND ORDER GRANTING PETITIONER’S MOTION TO STAY
(DKT. 2), HOLDING IN ABEYANCE THE PETITION FOR WRIT OF
HABEAS CORPUS, AND ADMINISTRATIVELY CLOSING THE CASE
Petitioner Robert Anthony Smith asks the Court to stay his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 pending his re-sentencing in the state
trial court following a remand by the Michigan Supreme Court. For the reasons stated
below, the Court holds the petition in abeyance and stays the proceedings under the
terms outlined in this opinion. The Court also administratively closes the case.
Petitioner was convicted by a jury in the Wayne County Circuit Court. See People
v. Smith, No. 316224, 2015 WL 1119716 (Mich. Ct. App. 2015). Petitioner filed an
appeal of right, raising the six claims that are included in his current habeas petition.
The Michigan Court of Appeals affirmed his conviction and sentence. Id. Petitioner
then filed an application for leave to appeal to the Michigan Supreme Court. See
People v. Smith, 499 Mich. 898 (2016). In addition to presenting the claims raised in
his appeal to the Michigan Court of Appeals, Petitioner asked to add a new issue
based on the Michigan Supreme Court’s opinion in People v. Lockridge, where it held
that Michigan’s Sentencing Guidelines scheme violates the Sixth Amendment right
to a jury trial. 498 Mich. 358 (2015).
The Michigan Supreme Court, in lieu of granting leave to appeal, issued the
[W]e REMAND this case to the Wayne Circuit Court to determine
whether the court would have imposed a materially different sentence
under the sentencing procedure described in People v. Lockridge, 498
Mich. 358, 870 N.W.2d 502 (2015). On remand, the trial court shall
follow the procedure described in Part VI of our opinion. If the trial court
determines that it would have imposed the same sentence absent the
unconstitutional constraint on its discretion, it may reaffirm the original
sentence. If, however, the trial court determines that it would not have
imposed the same sentence absent the unconstitutional constraint on its
discretion, it shall resentence the defendant.
People v. Smith, 499 Mich. 898, 876 N.W.2d 825 (2016).
Petitioner has yet to be re-sentenced by the trial court.1 Dkt. 2, p. 2. Petitioner
indicates in his motion that should the trial court reaffirm the original sentence, he
plans to appeal the sentence again to the Michigan appellate courts. Dkt. 2, p. 3.
A federal district court is authorized to stay fully exhausted federal habeas
petitions pending the exhaustion of other claims in the state courts. See Bowling v.
Haeberline, 246 F. App’x. 303, 306 (6th Cir. 2007). Here, the Court grants Petitioner’s
motion to hold his petition in abeyance during the pendency of his re-sentencing in
the state trial court and any possible appeal from that re-sentencing. In making this
According to the online records kept by the Wayne County Circuit, at the time of
this Order that court had yet to re-sentence Petitioner.
determination, “the Court considers the consequences to the habeas petitioner if [the
Court] were to proceed to adjudicate the petition and find that relief is not warranted
before the state courts ruled on unexhausted claims. In that scenario, should the
petitioner subsequently seek habeas relief on the claims the state courts rejected, he
would have to clear the high hurdle of filing a second habeas petition.” Thomas v.
Stoddard, 89 F. Supp. 3d 937, 942 (E.D. Mich. 2015). Moreover, “[i]f this Court were
to proceed in parallel” while Petitioner was being re-sentenced and possibly pursuing
a post-sentencing appeal, “there is a risk of wasting judicial resources” because the
state court might grant relief on the unexhausted claim. Id. This Court sees no
prejudice to Respondent in staying this case, whereas Petitioner “could be prejudiced
by having to simultaneously fight two proceedings in separate courts” and potentially
having to satisfy the heavy burden of 28 U.S.C. § 2244(b)(2)’s second-or-successivepetition requirements. Thomas, 89 F. Supp. 3d at 943.
That said, even where the Court determines that a stay is appropriate pending
exhaustion, it “should place reasonable time limits on a petitioner’s trip to state court
and back.” Rhines v. Weber, 544 U.S. 269, 278 (2005). The Court therefore conditions
the stay on Petitioner returning to federal court within 90 days of either his resentencing in the trial court (if he does not appeal his new sentence) or the completion
of any re-sentencing appeal in the Michigan appellate courts (if he does appeal his
If the Wayne County Circuit Court has already resentenced Petitioner but has not
updated its online records to reflect his re-sentencing, and Petitioner decides not to
Accordingly, the Court hereby GRANTS Petitioner’s motion to stay and hold his
habeas petition in abeyance pending the completion of his re-sentencing proceedings
in the state courts. To avoid administrative difficulties, the Court ORDERS the
Clerk of Court to close this case for statistical purposes only. Nothing in this order
shall be considered a disposition of the petition. Thomas, 89 F. Supp. 3d at 943-44.
Dated: January 13, 2017
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically submitted on January 13,
2017, using the CM/ECF system, which will send notification to all parties.
appeal that sentence, he must return to federal court within 90 days of this Order
instead of within 90 days of his re-sentencing.
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