Lesears v. Gidley

Filing 9

OPINION AND ORDER granting 8 Motion to Stay; and Closing Case. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CALVIN J. LeSEARS,
Petitioner,
CASE NO. 14-14365
HONORABLE JOHN CORBETT O’MEARA

v.
LORI GIDLEY,
Respondent.
__________________________/

OPINION AND ORDER
GRANTING PETITIONER’S MOTION FOR A STAY (ECF NO. 8)
AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES
I.

Introduction and Background

This matter has come before the Court on petitioner Calvin J. LeSears’ pro se
habeas corpus petition under 28 U.S.C. § 2254 and Petitioner’s motion to hold the
habeas petition in abeyance. Petitioner is challenging his state convictions for firstdegree (premeditated) murder, Mich. Comp. Laws § 750.316(1)(a), carrying a
concealed weapon (CCW), Mich. Comp. Laws § 750.227, and possessing a firearm
during the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227b.
Petitioner is serving a life sentence for the murder conviction, a concurrent sentence of
two to five years in prison for the CCW conviction, and a consecutive term of two years
in prison for the felony firearm conviction. The Michigan Court of Appeals affirmed
Petitioner’s convictions in an unpublished, per curiam opinion. See People v. LeSears,
No. 305314 (Mich. Ct. App. Sept. 12, 2013).

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On January 31, 2014, the Michigan

Supreme Court denied leave to appeal because it was not persuaded to review the
issues. See People v. LeSears, 495 Mich. 936; 843 N.W.2d 206 (2014).
On November 12, 2014, Petitioner filed his habeas corpus petition in this Court.
As grounds for relief, Petitioner asserts the following: (1) the prosecution failed to prove
that Petitioner’s acts or encouragement caused the victim’s death and, therefore,
Petitioner’s murder conviction violated his right to due process; (2) the trial court erred
when it admitted in evidence Petitioner’s involuntary statement to the police; and (3) the
trial court violated the rule of completeness by admitting only Petitioner’s June 23, 2010,
statement to the police and not his earlier exculpatory statement. Respondent Lori
Gidley argues in an answer to the petition filed through counsel that the state appellate
court’s decision on Petitioner’s claims was not unreasonable and that Petitioner’s third
claim is not cognizable on habeas review because it raises only an issue of state law.
Now before the Court is Petitioner’s motion to stay this proceeding and to hold
his habeas petition in abeyance pending exhaustion of additional state remedies.
Petitioner seeks to raise the following new claims in a motion for relief from judgment
submitted to the state trial court: (1) he was denied effective assistance of counsel
when trial counsel failed to object to the identification evidence; (2) the trial court
violated his right to a public trial by excluding the public on the fourth day of trial, and
trial counsel was ineffective for failing to object to the closure of the courtroom; and (3)
appellate counsel’s failure to raise significant and obvious issues on direct appeal
deprived Petitioner of his right to effective assistance of counsel. Respondent has not
filed an answer to Petitioner’s motion.

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II. Discussion
A. The Exhaustion Doctrine and the Stay-and-Abeyance Procedure
The doctrine of exhaustion of state remedies requires a state prisoner to “give
the state courts an opportunity to act on his claims before he presents those claims to a
federal court in a habeas petition.” O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
This requirement is satisfied if a prisoner “invok[es] one complete round of the State’s
established appellate review process,” including a petition for discretionary review in the
state supreme court, “when that review is part of the ordinary appellate review
procedure in the State.” O’Sullivan v. Boerckel, 526 U.S. at 845, 847. Thus, to properly
exhaust state remedies, a prisoner must present the factual and legal basis for each of
his claims to the state court of appeals and to the state supreme court before raising the
claims in a habeas corpus petition. Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir.
2009).
In appropriate cases, a federal district court may stay habeas proceedings and
hold a habeas petition in abeyance while an inmate returns to state court to exhaust
state remedies for previously unexhausted claims. Rhines v. Weber, 544 U.S. 269, 275
(2005). After the inmate exhausts his state remedies, the district court can lift its stay
and allow the inmate to proceed in federal court. Id. at 275-76.1

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Rhines v. Weber involved a “mixed” petition of exhausted and unexhausted
claims, whereas the habeas petition in this case raises only exhausted claims.
The Court nevertheless finds the Rhines v. Weber factors helpful in determining
whether to hold Petitioner’s case in abeyance. Cf. Thomas v. Stoddard, 89 F.
Supp. 3d 937, 941-43 (E.D. Mich. 2015) (applying the Rhines v. Weber factors in
a case which contained only exhausted claims).
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This stay-and-abeyance procedure is “available only in limited circumstances,” id.
at 277, such as when “the petitioner had good cause for his failure to exhaust, his
unexhausted claims are potentially meritorious, and there is no indication that the
petitioner engaged in intentionally dilatory litigation tactics.”

Id. at 278.

In such

circumstances, the district court should stay, rather than dismiss, the habeas petition
because “the petitioner’s interest in obtaining federal review of his claims outweighs the
competing interests in finality and speedy resolution of federal petitions.” Id.
B. Application
Petitioner has exhausted state remedies for his current three claims, but he
seeks to raise three new claims, which he has not presented to the state courts. A
dismissal of this case while Petitioner pursues additional state remedies could result in
a subsequent petition being barred by the one-year statute of limitations found in 28
U.S.C. § 2244(d).

Furthermore, Petitioner’s unexhausted claims are not plainly

meritorious, and he is not engaged in dilatory litigation tactics. Additionally, he alleges
that appellate counsel was “cause” for his failure to raise all his claims on direct review.
III. Conclusion
The Court concludes that it is not an abuse of discretion to stay this case while
Petitioner pursues additional state remedies. The Court therefore grants Petitioner’s
motion for a stay and to hold his habeas petition in abeyance (ECF No. 8).
As a condition of this stay, the Court orders Petitioner to file a motion for relief
from judgment in the state trial court within ninety (90) days of the date of this order. If
Petitioner is unsuccessful in state court and wishes to return to federal court, he must

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file an amended habeas corpus petition and a motion to re-open this case within ninety
(90) days of exhausting state remedies for his new claims. The motion and amended
petition shall contain the same case number that appears on this order, and because
amended pleadings generally supersede initial pleadings, Hayward v. Cleveland Clinic
Foundation,759 F.3d 601, 617 (6th Cir. 2014) (citing 6 Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1476 (3d ed. 2010)), the amended habeas
petition must include all the claims that Petitioner wants the Court to consider. Failure
to comply with the conditions of this stay could result in the dismissal of the habeas
petition. Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014), cert. denied, 135 S. Ct.
1403 (2015).
Finally, the Court orders the Clerk of the Court to close this case for
administrative purposes. Nothing in this order shall be construed as an adjudication of
Petitioner’s claims.
Date: January 29, 2016

s/John Corbett O’Meara
United States District Judge

I hereby certify that on January 29, 2016 a copy of this opinion and order was
served upon the parties of record using the ECF system and/or first-class U.S. mail.

s/William Barkholz
Case Manager

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