Evans v. Palmer
OPINION and ORDER Holding the Petition for Writ of Habeas Corpus in Abeyance and Administratively Closing the Case. Signed by District Judge Linda V. Parker. (RLou)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case Number 4:17-CV-12145
Honorable Linda V. Parker
OPINION AND ORDER HOLDING THE PETITION FOR WRIT OF
HABEAS CORPUS IN ABEYANCE AND ADMINISTRATIVELY
CLOSING THE CASE
Petitioner Anthony Evans (“Petitioner”), confined at the Michigan
Reformatory in Ionia, Michigan, filed a pro se petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his convictions in Michigan state court
for armed robbery, first-degree home invasion, and felony firearm, second offense.
Petitioner asks the Court to hold the petition in abeyance to permit him to complete
post-conviction proceedings in the state courts. For the reasons that follow, the
Court is granting Petitioner’s request under the terms outlined below and is
administratively closing the case.
In April 2013, Petitioner pleaded guilty to the above offenses in the Wayne
County Circuit Court. Petitioner’s conviction was affirmed on appeal. People v.
Evans, No. 327781 (Mich.Ct.App. July 17, 2015), lv. den. 875 N.W.2d 213 (Mich.
2016). Petitioner filed a post-conviction motion to withdraw his guilty plea, which
remains pending in the Wayne County Circuit Court.
This Court received a letter from Petitioner, dated June 5, 2017, in which he
indicates that he intends to file a petition for writ of habeas corpus to challenge his
convictions. Petitioner asks the Court to hold his case in abeyance while he
finishes exhausting his claims in the state court. Petitioner has attached to his letter
the post-conviction motion to withdraw his guilty plea filed with the state court, as
well as other pleadings and exhibits.
1. Petitioner’s letter is construed as a petition for writ of habeas corpus
This Court construes Petitioner’s June 5, 2017 letter as a petition for a writ
of habeas corpus filed pursuant to 28 U.S.C. § 2254, because he expresses his
desire to seek habeas relief on his claims and requests to hold the petition for writ
of habeas corpus in abeyance while he pursues post-conviction relief in the state
courts. Petitioner attaches his state court pleadings, delineating the claims he is
exhausting in the state courts and that he wishes to present here if the state court
denies him relief. Under the circumstances, this Court should construe his letter as
a newly filed petition for writ of habeas corpus. See, e.g., Sueing v. Palmer, 503 F.
App’x. 354, 356-57 (6th Cir. 2012).
The Sixth Circuit has advised that “[t]he allegations of a pro se habeas
petition, ‘though vague and conclusory, are entitled to a liberal construction.”
Franklin v. Rose, 765 F.2d 82, 86 (6th Cir. 1985) (quoting Burris v. United States,
430 F.2d 399, 403 (7th Cir. 1970)). “The appropriate liberal construction requires
active interpretation in some cases to construe a pro se petition ‘to encompass any
allegation stating federal relief.’ ” Id. (quoting White v. Wyrick, 530 F.3d 818, 819
(8th Cir. 1976)). This Court is willing to incorporate the arguments raised in the
state court documents Petitioner attaches to his letter as being part of Petitioner’s
application for the writ of habeas corpus.
2. The motion to hold the petition in abeyance is granted
Generally, a state prisoner seeking federal habeas relief first must exhaust
his or her available state court remedies before raising a claim in federal court. 28
U.S.C. § 2254(b), (c); see Picard v. Connor, 404 U. S. 270, 275-78 (1971).
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, a federal habeas court must review each claim for exhaustion
before review on the merits. Id. Federal district courts generally must dismiss
habeas petitions that are mixed—that is, which contain both exhausted and
unexhausted claims. See Pliler v. Ford, 542 U.S. 225, 230 (2004) (citing Rose v.
Lundy, 455 U.S. 509, 510, 522 (1982)).
The outright dismissal of a petition, albeit without prejudice, might result in
preclusion of federal review of the petitioner’s claims due to the expiration of the
one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act
(AEDPA). See 28 U.S.C. § 2244(d)(1). A habeas petitioner who is concerned
about the possible effects of his or her state post-conviction filings on AEDPA’s
statute of limitations can file a “protective” petition in federal court, as Petitioner
appears to have done, 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 (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 the petitioner’s failure to exhaust claims and that the unexhausted
claims are not “plainly meritless.” Rhines, 544 U.S. at 278.
Petitioner’s claims do not appear to be “plainly meritless.” Further,
Petitioner asserts that he did not properly raise some of his claims in the state
courts due to the ineffective assistance of appellate counsel. Finally, it does not
appear that Petitioner has engaged in “intentionally dilatory tactics.” Petitioner
also has good cause for failing to raise his ineffective assistance of appellate
counsel claim earlier because state post-conviction review would be the first
opportunity that he has to raise this claim in the Michigan courts. See Guilmette v.
Howes, 624 F. 3d 286, 291 (6th Cir. 2010).
When 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 Petitioner does not delay in exhausting his state court remedies and
returning to federal court, if necessary, the Court imposes the time limits set forth
The Court is GRANTING Petitioner’s request to hold this matter in
abeyance. This tolling, however, is conditioned upon Petitioner initiating his state
post-conviction remedies (which he apparently already has done) within thirty
(30) days of this Opinion and Order. If Petitioner is unsuccessful in state court and
wishes to re-open this case, he must file an amended habeas corpus petition setting
forth all of the claims he is asserting in support of habeas relief and a motion to reopen this case, using the same case number that appears on this Opinion and
Order, within ninety (90) days of completing the exhaustion of his state court
post-conviction remedies. Petitioner’s failure to comply with these conditions
could result in the dismissal of the habeas petition.
To avoid administrative difficulties, the Clerk shall CLOSE this case for
statistical purposes only. Nothing in this decision or in the related docket entry
shall be considered a dismissal or disposition of this matter.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: July 18, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, July 18, 2017, by electronic and/or U.S.
First Class mail.
s/ R. Loury
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