Prather v. Rivard

Filing 2

ORDER holding habeas petition in abeyance and closing case for administrative purposes. Signed by District Judge Judith E. Levy. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Franchot Prather,
Petitioner,

Case No. 14-cv-14860
Hon. Judith E. Levy
Mag. Judge Mona J. Majzoub

v.
S. Rivard,
Respondent.
__________________________________/

ORDER HOLDING THE HABEAS PETITION IN ABEYANCE
AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES
Petitioner Franchot Prather recently filed a pro se habeas corpus
petition under 28 U.S.C. § 2254. Petitioner indicates in his habeas petition
that he did not raise his grounds for relief in state court, as required by 28
U.S.C. § 2254(b)(1). Accordingly, the Court will hold this case in abeyance
pending exhaustion of state remedies and close the case for administrative
purposes.
I. Background
Petitioner was convicted in Wayne County, Michigan of assault with
intent to commit murder, Mich. Comp. Laws § 750.83, felonious assault,
Mich. Comp. Laws § 750.82, felon in possession of a firearm, Mich. Comp.

Laws § 750.224f, and possession of a firearm during the commission of a
felony, second offense, Mich. Comp. Laws § 750.227b. The trial court
sentenced petitioner on March 29, 2012, to five years in prison for
possession of a firearm during the commission of a felony. The court
ordered this sentence to run consecutively to concurrent prison terms of
thirty-five to seventy-five years for assault with intent to commit murder,
fifty-four months to fifteen years for felonious assault, and seventy-two
months to fifteen years for being a felon in possession of a firearm.
On appeal from his convictions, petitioner argued that (1) the trial
court committed reversible error when it admitted scientific evidence
without an adequate legal foundation and (2) trial counsel was ineffective
for failing to object to the evidence. The Michigan Court of Appeals
disagreed and affirmed petitioner’s convictions in an unpublished decision.
See People v. Prather, No. 310005, 2013 WL 3835958 (Mich. Ct. App. July
25, 2013). On December 23, 2013, the Michigan Supreme Court denied
leave to appeal. See People v. Prather, 495 Mich. 916; 840 N.W.2d 321
(2013).
On December 17, 2014, petitioner signed and dated his habeas
corpus petition, and on December 22, 2014, the Clerk of Court filed the
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petition. The Court understands the grounds for relief to be: (1) trial
counsel was ineffective for waiving procedural safeguards and disclosing
petitioner’s status, and appellate counsel was ineffective for failing to raise
this issue on appeal; (2) the trial court denied petitioner an opportunity for
impeachment; and (3) trial counsel failed to present an alibi defense.
Petitioner admits that he did not raise any of these claims in state court.
II. Discussion
The doctrine of exhaustion of state remedies requires state
prisoners to fairly present all their claims to the state courts before raising
their claims in a federal habeas corpus petition.

See 28 U.S.C. §

2254(b)(1); 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, 526
U.S. at 845, 847. Thus, to properly exhaust state remedies, a prisoner
must fairly present the factual and legal basis for each habeas claim to the
state court of appeals and to the state supreme court before raising the
claims in a federal habeas corpus petition. Wagner v. Smith, 581 F.3d 410,
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414-15 (6th Cir. 2009).
Petitioner alleges that he did not exhaust state remedies for his three
claims, but he appears to be saying that he intends to raise the issues, or
has already raised them, in a post-conviction motion for relief from
judgment in the state trial court. Federal district courts ordinarily must
dismiss a habeas petition containing unexhausted claims. Rose v. Lundy,
455 U.S. 509, 522 (1982). But a dismissal of this case could result in a
subsequent petition being barred by the one-year statute of limitations.
See 28 U.S.C. § 2244(d).
Federal district courts have authority to grant stays, Rhines v.
Weber, 544 U.S. 269, 276 (2005), and, in appropriate cases, they may stay
a case while an inmate returns to state court to exhaust state remedies for
previously unexhausted claims. See id. at 275. After the inmate exhausts
state remedies, the district court can lift its stay and allow the inmate to
proceed in federal court. Id. at 275-76.
This stay-and-abeyance procedure is appropriate only in “limited
circumstances,” 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
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litigation tactics.” Id. at 277, 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. at 278.
Petitioner’s unexhausted claims are not plainly meritless, and he
alleges that his appellate attorney was at fault for not raising the claims
on direct appeal. Further, there is no indication that petitioner is engaged
in intentionally dilatory litigation tactics.
Accordingly,
IT IS ORDERED that this case is stayed and the habeas petition
is held in abeyance pending exhaustion of state remedies.
IT IS FURTHER ORDERED that, as a condition of this stay,
petitioner must file a motion for relief from judgment in state court within
ninety (90) days of the date of this order if he has not already done so.
IT IS FURTHER ORDERED that, if petitioner is unsuccessful in
state court and wishes to re-open this case, he must file an amended
habeas corpus petition and a motion to re-open this case within ninety
(90) days of exhausting state remedies for his habeas claims. The motion
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and amended petition must contain the same case number that appears
on this order. 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), petition for cert. filed, No. 14-7246 (U.S. Nov. 7,
2014).
IT IS FURTHER ORDERED that the Clerk of the Court shall close
this case for administrative purposes. Nothing in this order shall be
construed as an adjudication of petitioner’s claims.
IT IS SO ORDERED.

Dated: January 16, 2015
Ann Arbor, Michigan

s/ Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s ECF
System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 16, 2015
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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