Daniska v. Winn
OPINION and ORDER Holding in Abeyance the 1 Petition for Writ of Habeas Corpus and Administratively Closing the Case. Signed by District Judge Matthew F. Leitman. (HMon)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 4:17-cv-12472
Hon. Matthew F. Leitman
THOMAS W. WINN,
OPINION AND ORDER HOLDING IN ABEYANCE THE
PETITION FOR WRIT OF HABEAS CORPUS AND
ADMINISTRATIVELY CLOSING THE CASE
Keith Daniska, (“Petitioner”), filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court
A state prisoner who seeks federal habeas relief must first exhaust
his or her available state court remedies before raising a claim in federal
court. 28 U.S.C. § 2254(b) and (c). See Picard v. Connor, 404 U. S. 270,
275-78 (1971). Petitioner asserts that he presented two claims to the
Michigan Supreme Court but not the Michigan Court of Appeals,
asserting that insufficient was presented at trial to sustain his
convictions and that the jury was improperly instructed. Dkt. 1, ¶ 20.
Petitioner acknowledges that these claims are unexhausted. Id., at ¶ 22.
He requests that the Court stay the case while he pursues state postconviction review with respect to these claims. Id., at p. 19. To avoid
problems with the one year statute of limitations contained in 28 U.S.C.
§ 2244(d)(1), a federal court may opt to stay a federal habeas petition and
hold further proceedings in abeyance pending resolution of state court
post-conviction proceedings. See Rhines v. Weber, 544 U.S. 269, 278
The Court holds the petition in abeyance. Petitioner must present
his claims in state court by filing a post-conviction motion for relief from
judgment with the state trial court within sixty days from the date of this
Order. See e.g. Wagner v. Smith, 581 F. 3d 410, 419 (6th Cir. 2009).
Further, he must ask this Court to lift the stay within sixty days of
exhausting his state court remedies. Failure to comply with any of the
conditions of the stay could result in the dismissal of the habeas petition.
Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014).
IT IS HEREBY ORDERED that Petitioner’s petition for writ of
habeas corpus shall be stayed and held in abeyance pending Petitioner’s
Respondent to file a responsive pleading is VACATED.
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 668, 677
(E.D. Mich. 2002).
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.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: August 3, 2017
I hereby certify that a copy of the foregoing document was served
upon the parties and/or counsel of record on August 3, 2017, by electronic
means and/or ordinary mail.
s/Holly A. Monda
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