Hairston v. Campbell

Filing 5

OPINION and ORDER Holding in Abeyance the 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
SOUTHERN DIVISION
DAVID LAVALE HAIRSTON,
Petitioner,
v.

Civil No. 5:16-CV-13123
HONORABLE JOHN CORBETT O’MEARA
UNITED STATES DISTRICT JUDGE

SHERMAN CAMPBELL,
Respondent,
____________________________________/
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT
OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE.
David Lavale Hairston, (“Petitioner”), confined at the Carson City Correctional
Facility in Carson City, Michigan, filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his pro se application, petitioner challenges his convictions for first-degree
felony murder, M.C.L.A. 750.316(1)(d); first-degree child abuse, M.C.L.A. 750.136b(2),
third-degree child abuse, M.C.L.A. 750.136b(5), and two counts of torture, M.C.L.A.
750.85(1). Petitioner has also filed a motion hold the petition in abeyance to permit him to
return to the state courts to present additional claims that have not been exhausted with the
state courts and that are not included in his current habeas petition.
For the reasons stated below, the Court holds the petition in abeyance and stays the
proceedings under the terms outlined in this opinion to permit petitioner to return to the state
courts to exhaust his additional claims. The Court will also administratively close the case.

1

I. Background
Petitioner was convicted following a jury trial in the Wayne County Circuit Court.
Petitioner’s conviction was affirmed on appeal. People v. Hairston, No. 317218
(Mich.Ct.App. Jan. 15, 2015); lv. den. 498 Mich. 855, 865 N.W.2d 24 (2015).
On August 23, 2016, petitioner filed this application for writ of habeas corpus.

1

Petitioner seeks habeas relief on the ground that he raised in the state courts on his direct
appeal.
II. Discussion
Petitioner has filed a motion to hold the habeas petition in abeyance so that he can
return to the state courts to raise claims that have not been exhausted with the state courts and
which are not included in the current petition.
A federal district court is authorized to stay fully exhausted federal habeas petitions
pending the exhaustion of other claims in the state courts. See Nowaczyk v. Warden, New
Hampshire State Prison, 299 F.3d 69, 77-79 (1st Cir. 2002)(holding that district courts
should “take seriously any request for a stay.”); Anthony v. Cambra, 236 F. 3d 568, 575 (9th
Cir. 2000); See also Bowling v. Haeberline, 246 Fed. Appx. 303, 306 (6th Cir. 2007)(a
habeas court is entitled to delay a decision in a habeas petition that contains only exhausted
claims “when considerations of comity and judicial economy would be served”)(quoting
Nowaczyk, 299 F. 3d at 83); See also Thomas v. Stoddard, 89 F. Supp. 3d 937, 943 (E.D.

1

Under the prison mailbox rule, this Court assumes that petitioner filed his habeas petition on August 23,
2016, the date that it was signed and dated. See Towns v. U.S., 190 F. 3d 468, 469 (6th Cir. 1999).

2

Mich. 2015). Indeed, although there is no bright-line rule that a district court can never
dismiss a fully-exhausted habeas petition because of the pendency of unexhausted claims in
state court, in order for a federal court to justify departing from the “heavy obligation to
exercise jurisdiction,” there must be some compelling reason to prefer a dismissal over a stay.
Nowaczyk, 299 F. 3d at 82 (internal quotation omitted); See also Bowling, 246 Fed. Appx.
at 306 (district court erred in dismissing petition containing only exhausted claims, as
opposed to exercising its jurisdiction over petition, merely because petitioner had
independent proceeding pending in state court involving other claims).
The Court grants petitioner’s motion to hold the petition in abeyance while he returns
to the state courts to exhaust. The outright dismissal of the petition, albeit without prejudice,
might result in preclusion of consideration of the petitioner’s claims in this Court due to the
expiration of the one year statute of limitations contained in the Antiterrorism and Effective
Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d)(1). A common circumstance calling
for abating a habeas petition arises when the original petition was timely filed, but a second,
exhausted habeas petition would be time barred by the AEDPA’s statute of limitations. See
Hargrove v. Brigano, 300 F. 3d 717, 720-21 (6th Cir. 2002).
Other considerations merit holding the petition in abeyance while petitioner returns
to the state courts to exhaust his new claims. In particular, “the Court considers the
consequences to the habeas petitioner if it were to proceed to adjudicate the petition and find
that relief is not warranted before the state courts ruled on unexhausted claims. In that
scenario, should the petitioner subsequently seek habeas relief on the claims the state courts
3

rejected, he would have to clear the high hurdle of filing a second habeas petition.” Thomas,
89 F. Supp. 3d at 942 (citing 28 U.S.C. 2244(b)(2)). Moreover, “[I]f this Court were to
proceed in parallel with state post-conviction proceedings, there is a risk of wasting judicial
resources if the state court might grant relief on the unexhausted claim.” Id. Other
considerations merit granting a stay also. This Court is currently not in a position to
determine whether petitioner’s new claims have any merit, thus, the Court cannot say that
petitioner’s claims are “plainly meritless.” Id. at 943. Nor, on the other hand, can the Court
at this time say that petitioner’s new claims plainly warrant habeas relief. Id. If the state
courts deny post-conviction relief, this Court would still benefit from the state courts’
adjudication of these claims in determining whether to permit petitioner to amend his petition
to add these claims. Id. Finally, this Court sees no prejudice to respondent in staying this
case, whereas petitioner “could be prejudiced by having to simultaneously fight two
proceedings in separate courts and, as noted, if this Court were to rule before the state courts,
[petitioner] would have the heavy burden of satisfying 28 U.S.C. § 2244(b)(2)’s second-orsuccessive-petition requirements” should he seek habeas relief on his new claims. Thomas,
89 F. Supp. 3d at 943.
However, even where a district court determines that a stay is appropriate pending
exhaustion, the district court “should place reasonable time limits on a petitioner’s trip to
state court and back.” Rhines v. Weber, 544 U.S. 269, 278 (2005). To ensure that there are
no delays by petitioner in exhausting state court remedies, this Court imposes time limits
within which petitioner must proceed with his state court post-conviction proceedings. See
4

Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002).
The Court holds the petition in abeyance to allow petitioner to initiate post-conviction
proceedings in the state courts. This tolling is conditioned upon petitioner initiating his state
post-conviction remedies within ninety days of receiving this Court’s order and returning to
federal court within ninety days of completing the exhaustion of state court post-conviction
remedies. Hargrove, 300 F. 3d at 721; See also Geeter v. Bouchard, 293 F. Supp. 2d 773,
775 (E.D. Mich. 2003).
Petitioner’s method of properly exhausting these claims in the state courts would be
through filing a motion for relief from judgment with the Wayne County Circuit Court under
M.C.R. 6.502. See Wagner v. Smith, 581 F. 3d 410, 419 (6th Cir. 2009); See also Mikko v.
Davis, 342 F. Supp. 2d 643, 646 (E.D. Mich. 2004). A trial court is authorized to appoint
counsel for petitioner, seek a response from the prosecutor, expand the record, permit oral
argument, and hold an evidentiary hearing. M.C.R. 6.505-6.507, 6.508 (B) and (C). 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. Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997).
Petitioner is required to appeal the denial of his post-conviction motion to the Michigan
Court of Appeals and the Michigan Supreme Court in order to properly exhaust the claims
that he would raise in his post-conviction motion. See e.g. Mohn v. Bock, 208 F. Supp. 2d
796, 800 (E.D. Mich. 2002).

5

III. ORDER
IT IS HEREBY ORDERED that the proceedings are STAYED and the Court will
hold the habeas petition in abeyance. Petitioner must file a motion for relief from judgment
in state court within ninety days of receipt of this order. He shall notify this Court in writing
that such motion papers have been filed in state court. If he fails to file a motion or notify
the Court that he has done so, the Court will lift the stay and will reinstate the original
petition for writ of habeas corpus to the Court’s active docket and will proceed to adjudicate
only those claims that were raised in the original petition. After petitioner fully exhausts his
new claims, he shall file an amended petition that includes the new claims within ninety days
after the conclusion of his state court post-conviction proceedings, along with a motion to
lift the stay. Failure to do so will result in the Court lifting the stay and adjudicating the
merits of the claims raised in petitioner’s original habeas petition.
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 Thomas, 89 F. Supp.
3d at 943-944.
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: September 1, 2016
6

I hereby certify that a copy of the foregoing document was served upon the parties of
record on this date, September 1, 2016, using the ECF system and/or ordinary mail.

s/William Barkholz
Case Manager

7