Kirby v. Rivard

Filing 22

ORDER granting 20 Motion to Stay Proceedings and Hold Petition in Abeyance; and Administratively Closing Case. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT KIRBY,
Case Number: 5:14-CV-10415
HON. JOHN CORBETT O’MEARA

Petitioner,
v.
STEVEN RIVARD,
Respondent.
/

ORDER GRANTING PETITIONER’S MOTION TO STAY
PROCEEDINGS AND HOLD PETITION IN ABEYANCE
AND ADMINISTRATIVELY CLOSING CASE
This is a habeas case under 28 U.S.C. § 2254. Petitioner Robert Kirby is a state
inmate at the Michigan Reformatory in Ionia, Michigan. He challenges his convictions
for first-degree home invasion and possession of a firearm during the commission of a
felony. Also before the Court is Petitioner’s Motion to Stay Proceedings and Hold
Petition in Abeyance. The Court grants the motion.
I.
Petitioner was charged in Wayne County Circuit Court with 25 total counts: three
counts of armed robbery, one count of first-degree home invasion, three counts of
unlawful imprisonment, nine counts of receiving/concealing stolen firearms, six counts of
larceny of firearms, one count of being a felon in possession of a firearm, one counts of
larceny in a building, one count of escape while awaiting trial, and one count of felony

firearm. In addition, a habitual offender third notice was filed. Petitioner was on parole
at the time he was charged with these offenses.
Petitioner pleaded guilty in Wayne County Circuit Court to first-degree home
invasion and possession of a firearm during the commission of a felony, in exchange for
the dismissal of the remaining charges. On February 17, 2011, he was sentenced to 8 to
20 years’ imprisonment for the first-degree home invasion conviction and two years’
imprisonment for the felony-firearm conviction.
Petitioner filed an application for leave to appeal in the Michigan Court of Appeals
raising these claims: (i) counsel improperly waived right to enter a conditional plea, (ii)
ineffective assistance of counsel, (iii) counsel failed to investigate, (iv) prosecutorial
misconduct, and (v) guilty plea was involuntary. The Michigan Court of Appeals denied
leave to appeal. People v. Kirby, No. 307075 (Mich. Ct. App. Feb. 13, 2012). The
Michigan Supreme Court denied Petitioner’s application for leave to appeal. People v.
Kirby, 492 Mich. 854 (Mich. July 24, 2012).
Petitioner then filed a habeas corpus petition, raising the same claims raised in
state court, and a motion for stay. The Court granted the stay and administratively closed
the matter. After Petitioner exhausted his state court remedies, he returned to this Court.
The Court granted Petitioner’s request to reopen the proceedings and to file an amended
petition. Respondent filed an answer in opposition to the amended petition.
Now before the Court is Petitioner’s second request for a stay. Petitioner seeks a
stay based upon newly-discovered evidence which forms the basis for a second round of
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state court collateral proceedings.
II.
State prisoners must exhaust available state remedies for each of the claims
presented in a habeas petition before seeking a federal writ of habeas corpus. 28 U.S.C. §
2254(b)(1). Petitioner seeks a stay because he is currently seeking collateral review in
state court based upon newly-discovered evidence.
A federal court may stay a federal habeas petition and hold further proceedings in
abeyance pending resolution of state court post-conviction proceedings if outright
dismissal of a habeas petition would jeopardize the timeliness of a future petition, there is
good cause for the petitioner’s failure to exhaust those claims, the unexhausted claims are
not “plainly meritless,” and “there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics.” Rhines v. Weber, 544 U.S. 269, 278 (2005).
The Court finds that a stay is warranted in this case. First, the outright dismissal of
the petition, even without prejudice, may preclude future consideration of Petitioner’s
claims in this court due to the expiration of the statute of limitations. See 28 U.S.C. §
2241(d)(1). Staying a habeas corpus proceeding is appropriate where a second, exhausted
habeas petition may be time barred by the AEDPA’s statute of limitations. See Hargrove
v. Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002).
Second, Petitioner asserts that he could not have previously exhausted these claims
because they are newly-discovered. Third, Petitioner’s new claims allege the denial of
federally protected constitutional rights. Finally, the Court finds no indication that
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Petitioner is engaging in intentionally dilatory litigation tactics.
When a district court determines that a stay is appropriate pending resolution 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, the Court imposes time
limits within which he must proceed. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.
2002). Petitioner must also ask this Court to lift the stay within sixty days of completing
state court review. See id. “If the conditions of the stay are not met, the stay may later be
vacated nunc pro tunc as of the date the stay was entered, and the petition may be
dismissed.” Id. (internal quotation omitted).
III.
Accordingly, the Court GRANTS Petitioner’s “Motion to Stay” (ECF No. 20).
The habeas petition is STAYED and further proceedings in this matter are held in
ABEYANCE. Petitioner shall file a motion to lift the stay and an amended petition in
this Court within sixty days after the conclusion of the state court proceedings.

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The Court further ORDERS that, to avoid administrative difficulties, the Clerk of
Court shall close this case for statistical purposes only.

s/John Corbett O’Meara
United States District Judge
Date: August 24, 2017

I hereby certify that a copy of the foregoing document was served upon the parties
of record on this date, August 24, 2017, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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