Massey v. Woods
Filing
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OPINION an ORDER Granting Petitioner's MOTION to Hold Habeas Petition in Abeyance and Administratively Closing Case. Signed by District Judge John Corbett O'Meara. (SSch)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL LEE MASSEY,
Case Number: 5:14-CV-14130
HON. JOHN CORBETT O’MEARA
Petitioner,
v.
JEFFREY WOODS,
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 Michael Lee
Massey is a state inmate at the Chippewa Correctional Facility in Kincheloe,
Michigan. He challenges his convictions for three counts of armed robbery, three
counts of discharging a firearm in a building, three counts of felon-in-possession of
a firearm, and nine counts of 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’s convictions arise from three separate robberies in the City of
Pontiac in October 2009. He was convicted by a jury in Oakland County Circuit
Court. On February 17, 2011, he was sentenced to 25 to 70 years’ imprisonment
for each armed robbery conviction, 3 to 20 years’ imprisonment for each felon in
possession conviction, and 3 to 15 years’ imprisonment for each discharging a
firearm in a building conviction, to be served consecutively to nine concurrent twoyear terms for the felony-firearm convictions.
Petitioner filed an appeal of right in the Michigan Court of Appeals, arguing
that counsel provided ineffective assistance and that the prosecution presented
insufficient evidence regarding one of the robbery convictions. The Michigan
Court of Appeals affirmed Petitioner’s convictions. People v. Massey, No.
297672, 2011 WL 3115605 (Mich. Ct. App. July 26, 2011). The Michigan
Supreme Court denied Petitioner’s application for leave to appeal. People v.
Massey, 490 Mich. 972 (Mich. Dec. 28, 2011).
Petitioner has now filed a petition for a writ of habeas corpus. He raises
these claims: (i) Confrontation Clause violation; (ii) insufficient evidence
presented two sustain two robbery convictions; (iii) evidence of prior convictions
improperly admitted; (iv) denied counsel; (v) impermissibly suggestive
identification procedure; and (vi) ineffective assistance of trial and appellate
counsel. Petitioner also filed a motion to hold habeas petition in abeyance.
II.
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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.
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
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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.
Accordingly, it is ORDERED that Petitioner’s Motion to Hold Habeas
Petition in Abeyance [dkt. #2] 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
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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, 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: November 17, 2014
I hereby certify that a copy of the foregoing document was served upon the
parties of record on this date, November 17, 2014, using the ECF system and/or
ordinary mail.
s/William Barkholz
Case Manager
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