Buckley v. Klee
OPINION and ORDER Holding in Abeyance 1 Petition for Writ of Habeas Corpus; and Administratively Closing the Case, Signed by District Judge John Corbett O'Meara. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil No. 2:15-CV-11959
HONORABLE JOHN CORBETT O’MEARA
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR A WRIT OF
HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE.
Jeffery Buckley, residing in Pontiac, Michigan,1 filed a pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for domestic
violence, third offense, M.C.L. § 750.81(4). Respondent filed an answer to the petition for
a writ of habeas corpus. As part of the answer, respondent argues that the petition is
subject to dismissal because it contains claims which have not been properly exhausted
with the state courts. In lieu of dismissing the petition without prejudice, this Court holds
the petition in abeyance and stays the proceedings under the terms outlined in this opinion
The Michigan Department of Corrections’ Offender Tracking Information System (OTIS), which
this Court is permitted to take judicial notice of, see Ward v. Wolfenbarger,323 F. Supp. 2d 818, 821, n. 3
(E.D. Mich. 2004), indicates that petitioner was discharged from his sentence on October 1, 2017 and is
no longer in custody. The language of §§ 2241(c)(3) and 2254(a) require that a habeas petitioner be “in
custody”:under the conviction or sentence under attack at the time that a habeas petition is filed in the
federal court. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Whether a petitioner is in custody for
purposes of the habeas corpus statute is determined at the time that the petition is filed. Sevier v. Turner,
742 F.2d 262, 268 (6th Cir. 1984). Because petitioner was still serving his sentence at the time he filed his
petition, he satisfies the “in custody” requirement of §§ 2241(c)(3) and 2254(a), in spite of his subsequent
discharge. Once federal jurisdiction has attached to a habeas petition in federal district court, “it is not
defeated by the release of the petitioner prior to completion of proceedings” on his or her habeas
application. Carafas v. LaVallee, 391 U.S. 234, 238 (1968).
to permit petitioner to return to the state courts to exhaust his additional claims. If this fails,
the petition will be dismissed without prejudice.
Petitioner was convicted following a jury trial in the Oakland County Circuit Court.
Petitioner’s conviction was affirmed on appeal. People v. Buckley, No. 316992, 2014
WL 4628878 (Mich. Ct. App. Sept. 16, 2014), leave denied 497 Mich. 983 (2015).
Petitioner has now filed a petition for a writ of habeas corpus, seeking relief on the
I. Defendant was denied this State and Federal Constitutional Due Process
Right to a fair trial where the trial court allowed the introduction of prior acts
of domestic violence and prior statements that were irrelevant and prejudicial.
II. The prosecutor violated Mr. Buckley’s Due Process Right to a fair trial by
improperly impeaching the only defense witness with a false prior conviction.
III. Defendant was denied his right to a fair jury in violation of the VI
Amendment where at least one juror went on the Internet and accessed
information about Mr. Buckley that was not introduced at trial, counsel was
ineffective in failing to move the juror’s exclusion or for a mistrial. U.S. Const.
AM VI, XIV.
IV. Defendant’s Due Process Rights to a fair trial was [sic] violated where the
trial judge abused it’s [sic] discretion in denying discovery.
Respondent argues that petitioner’s habeas application is subject to dismissal
because it contains claims which have not been properly exhausted with the state courts.
As a general rule, a state prisoner who seeks federal habeas relief must first exhaust
his or her available state court remedies before raising a claim in federal court. 28 U.S.C.
§ 2254(b) and (c). See Picard v. Connor, 404 U. S. 270, 275-78 (1971). Although
exhaustion is not a jurisdictional issue, “it is a threshold question that must be resolved”
before a federal court can reach the merits of any claim contained in a habeas petition. See
Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009). Therefore, each claim must be
reviewed by a federal court for exhaustion before any claim may be reviewed on the merits
by a federal court. Id. Federal district courts normally must dismiss mixed habeas petitions
which contain both exhausted and unexhausted claims. See Pliler v. Ford, 542 U.S. 225,
230 (2004)(citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). A habeas petitioner has
the burden of proving that he or she exhausted his or her claims with the state courts. See
Caver v. Straub, 349 F.3d 340, 345 (6th Cir. 2003).
Respondent argues that petitioner’s first, third and fourth claims were not properly
exhausted with the state courts because petitioner abandoned the claims by not briefing
them properly. This Court agrees.
A claim that is abandoned on appeal is considered unexhausted. Cf. Fitchett v.
Perry, 644 F.App’x 485, 489 (6th Cir. 2016).
Petitioner has failed to exhaust three claims with the state courts.
Although respondent argues that these three claims are unexhausted, he urges this
Court to reject them on the merits. This Court declines to do so.
A habeas petitioner’s failure to exhaust his or her state court remedies does not
deprive a federal court of its jurisdiction to consider the merits of the habeas petition.
Granberry v. Greer, 481 U.S. 129, 131 (1987). An unexhausted claim may be adjudicated
if the unexhausted claim is without merit, such that addressing the claim would be efficient
and would not offend the interest of federal-state comity. Prather v. Rees, 822 F.2d 1418,
1422 (6th Cir. 1987); see also 28 U.S.C. § 2254(b)(2)(habeas petition may be denied on
the merits despite the failure to exhaust state court remedies). In certain cases, a federal
court should dismiss a non-federal or frivolous claim on the merits to save the state courts
the useless review of meritless constitutional claims. Cain v. Redman, 947 F.2d 817, 820
(6th Cir. 1991).
“In determining whether a claim is ‘plainly meritless,’ principles of comity and
federalism demand that the federal court refrain from ruling on the merits of the claim
unless ‘it is perfectly clear that the petitioner has no hope of prevailing.’” Dixon v. Baker,
847 F.3d 714, 722 (9th Cir. 2017)(quoting Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir.
2005)). “A contrary rule would deprive state courts of the opportunity to address a
colorable federal claim in the first instance and grant relief if they believe it is warranted.”
Id. (quoting Cassett, 406 F.3d at 624).
In Wagner v. Smith, 581 F.3d at 414, the Sixth Circuit addressed a habeas petition
involving several unexhausted claims that had been rejected on the merits by another judge
in this district. The Sixth Circuit remanded the matter back to the district court. Although
the Sixth Circuit discussed the four available options for addressing a habeas petition which
contained unexhausted claims, including the option of denying the unexhausted claims on
the merits, Id. at 419 (discussing the four options), the Sixth Circuit strongly suggested that
the district court should consider staying the petition and holding it in abeyance to permit
petitioner to return to the state courts to properly exhaust these claims, because the claims
were not “plainly meritless.” Id. at 419-20. On remand, the district court vacated its opinion
and order denying petitioner habeas relief, held the petition in abeyance to permit petitioner
to return to the state courts to exhaust his claims, and administratively closed the case.
Wagner v. Smith, U.S.D.C. 2:06-CV-10514 (E.D. Mich. Nov. 13, 2009).
The Sixth Circuit recently again reversed another judge in this district for rejecting
an unexhausted ineffective assistance of counsel claim on the merits. See Hickey v.
Hoffner, No. 16-1186, 2017 WL 2829523, ---- F. App’x.---- (6th Cir. June 30, 2017). In the
Hickey case, the petitioner alleged that trial counsel was ineffective for failing to call alibi
witnesses and other exculpatory witnesses. Although agreeing with the district court that
the claims were unexhausted, the Sixth Circuit ruled that they could not find petitioner’s
ineffective assistance of counsel claims to be plainly meritless, so as to deny relief on the
merits, because petitioner raised a “colorable” ineffective assistance of counsel claim. Id.,
at *3-4. The Sixth Circuit vacated the district court decision denying habeas relief and
remanded the matter to the district court to determine whether the petition should be held
in abeyance to allow petitioner to return to the state courts to exhaust his claims. Id.
Petitioner’s claims (inadmissible evidence, jury misconduct, ineffective assistance
of trial counsel, and discovery violation) are not plainly meritless because these are
colorable constitutional claims. This Court cannot categorically state that petitioner has
absolutely no hope of prevailing on these claims either in the state courts or in the federal
court. Because these unexhausted claims have “not yet been fully developed, it would be
premature for the Court to assess [the] merits.” Adams v. Haas, No. 15-11685, 2017 WL
264506, at *2 (E.D. Mich. Jan. 20, 2017).
Exhausting state court remedies in this case requires the filing of a post-conviction
motion for relief from judgment under M.C.R. 6.500. See Wagner v. Smith, 581 F.3d at 419.
Petitioner could exhaust this claim by filing a motion for relief from judgment with the
Oakland County Circuit Court under M.C.R. 6.502. Denial of a motion for relief from
judgment is reviewable by the Michigan Court of Appeals and the Michigan Supreme Court
upon the filing of an application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R.
7.302. See Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997).
The U.S. Supreme Court indicated that a habeas petitioner who is concerned about
the possible effects of his state post-conviction filings on the Antiterrorism and Effective
Death Penalty Act’s statute of limitations could file a “protective” petition in federal court and
then ask for the petition to be held in abeyance pending the exhaustion of state postconviction remedies. See 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, if there is good cause for failure to exhaust and the unexhausted claims are
not “plainly meritless.” Rhines, 544 U.S. at 278.
The Michigan Court of Appeals found that petitioner abandoned his first claim “by
failing to fully and properly address the bases for [the] claim of error,” abandoned his third
claim by “failing to provide any support for this claim of error” and in Claim # 4, petitioner
“again failed to properly support his claim of error.” Buckley, 2014 WL 4628878 **2, 7, 8.
Petitioner’s claims do not appear to be “plainly meritless.” Wagner v Smith, 581 F.3d at
419. Petitioner may assert that he did not previously raise his first, third and fourth claims
properly in the state courts due to the ineffective assistance of appellate counsel. Wagner,
581 F.3d at 419, nn. 4 and 5. Finally, it does not appear that petitioner has engaged in
“intentionally dilatory tactics.”2
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.” Rhines, 544 U.S. at 278. To ensure that petitioner does not
delay in exhausting his 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 claim or claims in state court by filing a post-conviction motion
for relief from judgment with the state trial 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).3
Accordingly, IT IS ORDERED that petitioner may file a motion for relief from
judgment with the state court within sixty (60) days of receipt of this Court’s order. If
This Court notes that although the Sixth Circuit in Wagner, 581 F.3d at 419-20 believed that the
unexhausted claims were not plainly meritless, so as to justify holding the case in abeyance to permit
petitioner to exhaust these claims, the Sixth Circuit affirmed the denial of habeas relief on these same
claims when the case came before that court again after petitioner exhausted these claims. See Wagner
v. Klee, 620 F.App’x 375, 377 (6th Cir. 2015). This indicates that the threshold for a claim to rise above
the “plainly meritless” standard is fairly low.
This Court has the discretion to stay the petition and hold it in abeyance even though petitioner
did not specifically request this Court to do so. See e.g. Banks v. Jackson, 149 F.App’x 414, 422, n. 7 (6th
petitioner fails to file a motion for relief from judgment with the state courts by that date, the
Court will dismiss the present petition without prejudice.
If petitioner files a motion for relief from judgment, he shall notify this Court that such
motion papers have been filed in state court. The case shall then be held in abeyance
pending the petitioner’s exhaustion of the claim or claims. Petitioner shall re-file his habeas
petition within 60 days after the conclusion of the state court post-conviction proceedings.
Petitioner is free at that time to file an amended habeas petition which contains any newly
Failure to comply with any of the conditions of the stay could result in the dismissal
of the habeas petition. Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014).
To avoid administrative difficulties, the Court ORDERS the Clerk of Court to CLOSE
this case for statistical purposes only. Nothing in this order or in the related docket entry
shall be considered a dismissal or disposition of this matter. See Sitto v. Bock, 207 F. Supp.
2d 668, 677 (E.D. Mich. 2002).
It is further ORDERED that upon receipt of a motion to reinstate the habeas petition
following exhaustion of state remedies, the Court may order the Clerk to reopen this case
for statistical purposes.
s/John Corbett O’Meara
United States District Judge
Date: October 17, 2017
I hereby certify that a copy of the foregoing document was served upon the parties
of record on this date, October 17, 2017, using the ECF system and/or ordinary mail.
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