Miliner v. Klee

Filing 7

ORDER GRANTING MOTION TO STAY AND HOLD IN ABEYANCE PETITION FOR WRIT OF HABEAS CORPUS 6 AND ADMINISTRATIVELY CLOSING THE CASE Signed by District Judge Judith E. Levy. (SSch)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Jamarr D. Miliner,
Petitioner,
v.

Case No. 16-cv-12783
Judith E. Levy
United States District Judge

Paul Klee,
Mag. Judge Mona K. Majzoub
Respondent.
________________________________/
ORDER GRANTING MOTION TO STAY AND HOLD IN
ABEYANCE PETITION FOR WRIT OF HABEAS CORPUS [6]
AND ADMINISTRATIVELY CLOSING THE CASE
This is a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Jamarr D. Miliner (“Petitioner”) was convicted after
a jury trial in the Wayne Circuit Court of second-degree murder. He
was sentenced to a term of thirty-five to seventy years’ imprisonment.
Petitioner’s habeas application raises four claims: (1) Petitioner is
entitled to be resentenced; (2) the prosecution presented insufficient
evidence to sustain the conviction; (3) Petitioner’s sentence was based
on inaccurate information; and (4) Petitioner’s trial counsel was

ineffective for failing to request an involuntary manslaughter jury
instruction.
Before the Court is Petitioner’s motion to stay the petition (Dkt. 6)
so that he can exhaust his state court remedies with respect to his
second, third, and fourth claims.
Petitioner indicates that following his conviction and sentence he
filed a direct appeal in the Michigan Court of Appeals. His appellate
brief raised what is now his first claim. The Michigan Court of Appeals
affirmed Petitioner’s conviction and sentence in an unpublished opinion.
People v. Milner, No. 315810, 2014 Mich. App. LEXIS 1554, at *1-12
(Mich. Ct. App. Aug. 21, 2014) (per curiam). Petitioner subsequently
filed an application for leave to appeal in the Michigan Supreme Court.
The Michigan Supreme Court denied the application on March 3, 2015.
People v. Milner, 497 Mich. 973 (2015).

The one-year statute of

limitations for filing his federal habeas petition started running ninety
days later, on June 1, 2015. See Jimenez v. Quarterman, 555 U.S. 113,
120 (2009) (a conviction becomes final when “the time for filing a
certiorari petition expires”).

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Petitioner states that on May 27, 2016, mere days before the
statute of limitations expired, he filed a motion for relief from judgment
in the trial court raising what now forms his second, third, and fourth
habeas claims. The filing of the state post-conviction review proceeding
tolls the limitations period. See 28 U.S.C. § 2244(d)(2). The trial court
denied the motion on July 12, 2016. Petitioner states that he appealed
this decision in the Michigan Court of Appeals and that the appeal is
still pending. Petitioner requests that his habeas petition be stayed and
held in abeyance pending exhaustion of his state court remedies with
respect to the claims raised in his post-conviction review proceeding.
A prisoner filing a petition for a writ of habeas corpus under 28
U.S.C. §2254 must first exhaust state remedies.

See O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the
state courts one full fair opportunity to resolve any constitutional issues
by invoking one complete round of the State’s established appellate
review process.”); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). To
satisfy this requirement, the claims must be “fairly presented” to the
state courts, meaning that the prisoner must have asserted both the
factual and legal bases for the claims in the state courts. See McMeans
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v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also Williams v.
Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans, 228 F.3d
at 681). A Michigan prisoner must properly present each issue he seeks
to raise in a federal habeas proceeding to both the Michigan Court of
Appeals and the Michigan Supreme Court to satisfy the exhaustion
requirement. See Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich.
1999); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
A federal district court has discretion to stay a petition raising
unexhausted claims to allow a petitioner to present those claims to the
state courts and then return to federal court on a perfected petition.
See Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is
available only in “limited circumstances,” such as when the one-year
statute of limitations poses a concern, the petitioner demonstrates “good
cause” for the failure to exhaust state remedies before proceeding in
federal court, the petitioner has not engaged in intentionally dilatory
litigation tactics, and the unexhausted claims are not “plainly
meritless.” Id. at 277.
Petitioner’s unexhausted claims do not appear to be plainly
meritless, and he does not appear to be engaged in dilatory litigation
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tactics.

Petitioner notes that he filed his motion for relief from

judgment with only a few days remaining on the one-year statute of
limitations.

He asserts that the delay in preparing and filing his

motion for relief from judgment was the result of his lack of legal
knowledge coupled with his limited access to the prison law library for
only four hours per week. (See Dkt. 1.) Dismissal of this case while
Petitioner exhausts his claims could therefore result in a subsequent
petition being barred by the one-year statute of.

Thus, the Court

exercises its discretion to stay this case while Petitioner exhausts his
state remedies.
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 there are no delays by
Petitioner in exhausting his state court remedies, this Court will impose
a time limit within which Petitioner must proceed with his state court
post-conviction proceedings. See Palmer v. Carlton, 276 F. 3d 777, 781
(6th Cir. 2002). Thus, the order staying the case is conditioned upon
Petitioner diligently pursuing relief in the state courts by pursuing
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timely appeals of his motion for relief from judgment and then
returning to federal court within sixty days of completing the
exhaustion of his state post-conviction remedies.

See Hargrove v.

Brigano, 300 F. 3d 717, 718 (6th Cir. 2002).
For the reasons set forth above, Petitioner’s motion to stay (Dkt. 6)
is GRANTED. The petition for writ of habeas corpus shall be held in
abeyance pending completion of Petitioner’s state post-conviction review
proceeding. This tolling is conditioned upon Petitioner timely appealing
the denial of his motion for relief from judgment through the Michigan
appellate courts and then re-filing his habeas petition—using the case
number already assigned to this case—within sixty days after the
conclusion of the state court post-conviction proceeding.
To avoid administrative difficulties, the Clerk of Court shall
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).

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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.
IT IS SO ORDERED.
Dated: January 3, 2017
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 3, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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