Kirby v. Rivard

Filing 6

OPINION AND ORDER Denying without Prejudice 2 MOTION to Appoint Counsel filed by Robert Kirby; Granting 3 MOTION to hold Habeas Petition in Abeyance; and Administatively 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

Petitioner,

HON. JOHN CORBETT O’MEARA

v.
STEVEN RIVARD,
Respondent.
/

OPINION AND ORDER GRANTING PETITIONER’S
MOTION TO HOLD HABEAS 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 St. Louis Correctional Facility in St. Louis, Michigan. He challenges his
convictions for first-degree home invasion and possession of a firearm during the
commission of a felony. In addition to his habeas petition, Petitioner filed a Motion to
Hold Habeas Petition in Abeyance. The Court grants the motion.
I.
Petitioner pleaded guilty in Wayne County Circuit Court to first-degree home
invasion and possession of a firearm during the commission of a felony. 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 the pending habeas corpus petition. He raises the same claims
raised in state court. Petitioner also filed a motion to hold habeas petition in abeyance.
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 asks for a stay so that he may raise unexhausted claims in state
court and then amend his petition to include these claims.
A prisoner who has not yet exhausted state court remedies may file a “‘protective’
petition in federal court and ask[] the federal court to stay and abey the federal habeas
proceedings until state remedies are exhausted.” 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 failure to exhaust claims
and that the unexhausted claims are not “plainly meritless.” Rhines, 544 U.S. at 278.
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Petitioner argues that his unexhausted claims were not presented in state court
because his trial and appellate attorneys were ineffective. An appellate attorney cannot be
expected to raise his own ineffective assistance on appeal. Combs v. Coyle, 205 F.3d 269,
276 (6th Cir. 2000). Thus, the Court finds that Petitioner has asserted good cause for
failing previously to present his claims in state court. In addition, the Court finds that
Petitioner’s claims are not “plainly meritless” and that Petitioner has not engaged in
intentionally dilatory tactics. See Rhines, 544 U.S. at 277-78. Therefore, the Court stays
further proceedings in this matter pending Petitioner’s exhaustion of the unexhausted
claims.
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.” Id. at 278. To ensure that Petitioner does not
delay in exhausting state court remedies, the Court imposes upon Petitioner time limits
within which he must proceed. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002).
Petitioner must present his claims in state court within sixty days from the date of this
Order. See id. Further, he must ask this Court to lift the stay within sixty days of
exhausting his state court remedies. 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.” Palmer, 276 F.3d at 781 (internal quotation omitted). At this
time, the Court makes no finding as to the timeliness of this petition.
III.
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Accordingly, it is ORDERED that Petitioner’s Motion to Hold Habeas Petition in
Abeyance [dkt. #3] is GRANTED. The habeas petition is STAYED and further
proceedings in this matter are held in ABEYANCE. If Petitioner fails to file a motion for
relief from judgment with the state trial court within sixty days from the date of this order,
the Court will dismiss the petition for writ of habeas corpus without prejudice. Petitioner
shall file a motion to lift the stay in this Court within sixty days after the conclusion of the
state court proceedings.
It is further ORDERED that Petitioner’s Motion to Appoint Counsel [dkt. #2] is
DENIED WITHOUT PREJUDICE.
It is further ORDERED that, to avoid administrative difficulties, the Clerk of Court
close this case for statistical purposes only. Nothing in this order or in the related docket
entry shall be considered a dismissal of this matter.

s/John Corbett O’Meara
United States District Judge
Date: February 12, 2014

I hereby certify that a copy of the foregoing document was served upon the parties
of record on this date, February 12, 2014, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

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