McGee v. Brewer

Filing 4

ORDER (1) Granting Petitioner's 2 MOTION to Stay 1 Petition for Writ of Habeas Corpus and (2) Administratively Closing Case. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
FATIMAH INAS MCGEE,
Petitioner,

Case No. 18-cv-10023
Hon. Matthew F. Leitman

v.
SHAWN BREWER,
Respondent.
_______________________________________/
ORDER (1) GRANTING PETITIONER’S MOTION TO STAY
PETITION FOR WRIT OF HABEAS CORPUS (ECF #2) AND
(2) ADMINISTRATIVELY CLOSING CASE
On January 3, 2018, Petitioner Fatimah Inas McGee filed a pro se petition for
writ of habeas corpus in this Court pursuant to 28 U.S.C. § 2254. (See ECF #1.) In
the petition, McGee challenges her state court conviction for second-degree murder.
(See id.)
On December 8, 2017, McGee filed a motion for relief from judgment with
the state trial court pursuant to Michigan Court Rule 6.500. In that motion, McGee
raised new constitutional claims that she had not previously presented to the state
courts. McGee now asks the Court to stay her federal habeas petition while she
resolves her motion for relief from judgment in state court. (See ECF #2.)
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. See 28 U.S.C.
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§ 2254(b) and (c). See also Picard v. Connor, 404 U. S. 270, 275-78 (1971). The
claims McGee has raised in her state-court motion for relief from judgment, by her
own admission, have not been fully exhausted.

In order to protect against

expiration of the one-year statute of limitations 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 the resolution of state court post-conviction proceedings. See
Rhines v. Weber, 544 U.S. 269, 278 (2005). The Court concludes that such a stay
is appropriate here in order to allow McGee to exhaust her claims without facing a
risk that the statute of limitations will expire.
In order for McGee to properly exhaust her new claims in state court, she must
pursue a timely appeal in the Michigan Court of Appeals and Michigan Supreme
Court if the trial court denies her motion for relief from judgment. See M.C.R. 6.509;
M.C.R. 7.203; M.C.R. 7.302. See also Nasr v. Stegall, 978 F.Supp. 714, 717 (E.D.
Mich. 1997); Mohn v. Bock, 208 F.Supp.2d 796, 800 (E.D. Mich. 2002).

In

addition, within 60 days of fully exhausting her new claims in state court, McGee
must return to this Court and file a motion to reinstate her habeas petition, using the
same caption and case number included at the top of this Order. See Palmer v.
Carlton, 276 F.3d 777, 781 (6th Cir. 2002) (adopting approach described in Zarvela
v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001)). Should McGee fail to comply with any
of these conditions, the Court could dismiss her habeas petition and/or refuse to

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consider any claims not raised in that petition. See Calhoun v. Bergh, 769 F.3d 409,
411 (6th Cir. 2014).
Accordingly, for the reasons stated above, McGee’s motion to stay her habeas
petition (ECF #2) is GRANTED. McGee’s habeas petition shall be stayed and held
in abeyance pending completion of the state-court proceedings described in this
Order. For administrative purposes, 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 Thomas
v. Stoddard, 89 F.Supp.3d 937, 943-44 (E.D. Mich. 2015). Upon timely receipt of a
motion from McGee to reinstate her petition, the Court will order the Clerk of the
Court to reopen this case for statistical purposes.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 9, 2018

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on January 9, 2018, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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