Vanburen v. Balcarcel
Filing
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OPINION and ORDER Granting Petitioner's 9 Letter Request/Motion to Stay, Staying Proceedings, and Administratively Closing Case. Signed by District Judge Judith E. Levy. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Lawrence VanBuren,
Petitioner,
Case No. 17-13819
Judith E. Levy
United States District Judge
v.
Erick Balcarcel,
Mag. Judge Patricia T. Morris
Respondent.
________________________________/
OPINION AND ORDER GRANTING PETITIONER’S LETTER
REQUEST/MOTION TO STAY [9], STAYING PROCEEDINGS,
AND ADMINISTRATIVELY CLOSING CASE
This is a habeas case brought under 28 U.S.C. § 2254. In 2015,
petitioner Lawrence VanBuren, a Michigan state prisoner, was convicted
of torture and assault with intent to rob while unarmed following a jury
trial in the Ingham County Circuit Court. He was sentenced as a fourth
habitual offender to concurrent terms of twenty-five to forty years
imprisonment for the torture conviction and twenty to thirty years
imprisonment for the assault with intent to rob while unarmed.
Petitioner raises claims regarding the sufficiency of the evidence and the
validity of his sentence in his petition. (Dkt. 1.) Respondent has filed an
answer to the petition arguing that it should be denied for lack of merit.
(Dkt. 7.) Petitioner then filed a letter request/motion to stay the
proceedings and hold his habeas petition in abeyance, now before this
court. (Dkt. 9) He seeks to return to state court to exhaust an additional
claim alleging that trial counsel was ineffective for advising him not to
take a plea offer that would have resulted in a lesser sentence. (Id.)
Respondent has not filed an answer to petitioner’s letter request/motion.
A habeas petitioner is entitled to relief only if he can show that the
state court adjudication on the merits of his claims “resulted in a decision
that was contrary to, or involved an unreasonable application of, clearly
established Federal law as determined by the Supreme Court of the
United States,” 28 U.S.C. § 2254(d)(1), as of the time of the state court
decision, Greene v. Fisher, 565 U.S. 34, 38-39 (2011); Carter v. Mitchell,
829 F.3d 455, 468 (6th Cir. 2016) (citing Greene, 565 U.S. at 34). A federal
court is unable to grant relief to a state prisoner under § 2254(d) unless
he has exhausted available state remedies. § 2254(b)(1)(A), (c);
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); McMeans v. Brigano,
228 F.3d 674, 681 (6th Cir. 2000) (citing Franklin v. Rose, 811 F.2d 322,
342-22 (6th Cir. 1987)). State courts must be given an opportunity to rule
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upon all of a petitioner’s claims and “to . . . correct alleged violations of
its prisoners’ federal rights” before a petitioner can present those claims
on habeas review. See Baldwin v. Reese, 541 U.S. 27, 29 (2004) (citations
and internal quotations omitted).
A claim is exhausted if the petitioner has “fairly present[ed]” his
claims as federal constitutional issues in the state courts before raising
those claims in a federal habeas petition. O’Sullivan, 526 U.S at 848;
McMeans, 228 F.3d at 681 (citing Franklin, 811 F.2d at 342-22). Claims
are “fairly presented” to the state courts when the petitioner has asserted
both the factual and legal bases for the claims in the state courts.
McMeans, 228 F.3d at 681; see also Williams v. Anderson, 460 F.3d 789,
806 (6th Cir. 2006) (citing McMeans, 228 F.3d at 681).
A petitioner must give state courts “one full opportunity” to resolve
any constitutional issues by invoking one complete round of the State’s
established appellate review system,” including seeking “discretionary
review in the State’s highest court.” O’Sullivan, 526 U.S. at 845 (citing §
2254(c)). See also Fay v. Noia, 372 U.S. 391, 435-36 (1963), overruled in
part on other grounds by Wainwright v. Sykes, 372 U.S. 391 (1963),
(holding habeas petitioners do not need to seek certiorari after state
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appellate review); Brown v. Allen, 344 U.S. 443, 448 (1953) (holding
habeas petitioners do not to seek state collateral relief on the same issues
addressed by direct review). A Michigan prisoner must present each issue
to the Michigan Court of Appeals and the Michigan Supreme Court.1
Morse v. Trippett, 37 F. App’x 96, 103 (6th Cir. 2002). The petitioner has
the burden to prove exhaustion. Nali v. Philips, 681 F.3d 837, 852 (6th
Cir. 2012) (citing Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994)).
A federal district court has discretion to stay a habeas petition to
allow a petitioner to present unexhausted claims to the state courts in
the first instance and then return to federal court on a perfected petition.
Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is available
only in “limited circumstances,” such as when the petitioner
demonstrates “good cause” for the failure to exhaust state court remedies
before proceeding in federal court, the unexhausted claims are not
“plainly meritless,” and the petitioner has not engaged in intentionally
dilatory tactics. Id. at 277. Additionally, pro se habeas petitions are
entitled to liberal construction of their habeas filings. Dotson v. Lane, 360
The Michigan Court Rules dictate how a habeas petitioner should go about
exhausting claims in state court. For example, a petitioner could file a motion for
relief from judgment, Mich. Ct. R. 6.502, and then appeal an adverse decision, Mich.
Ct. R. 6.509.
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F. App’x 617, 620 (6th Cir. 2010) (citing Erickson v. Pardus, 551 U.S. 89,
94 (2007)); Franklin, 765 F.2d at 84-85.
In this case, a stay is warranted. Petitioner wishes to pursue a new
claim that he has not yet presented to the state courts for consideration.
Although petitioner does not discuss good cause in his motion, the Court
finds a stay is appropriate because the one-year statute of limitations
applicable to federal habeas actions, 28 U.S.C. § 2244(d)(1), could pose a
problem if the Court were to dismiss the petition to allow for further
exhaustion of state remedies.2 Additionally, the filing is not plainly
meritless, and there is no evidence of intentional delay. Moreover,
because respondent has already responded to the initial habeas petition
and filed the state court record (Dkt. 8), a stay would conserve judicial
time and resources.
Accordingly, the Court GRANTS petitioner’s letter request,
construed as a motion to stay the proceedings, to hold the habeas petition
in abeyance. The stay is conditioned on petitioner presenting his new,
unexhausted claim to the state courts by filing a motion for relief from
The Court makes no determination as to the timeliness, procedural
appropriateness, or substantive merits of any claims.
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judgment with the trial court within sixty days of the filing date of this
order. See Hill v. Anderson, 300 F.3d 679, 683 (6th Cir. 2002) (adopting
the procedural approach taken in Zarvela v. Artuz, 254 F.3d 374 (2d Cir.
2001)). The stay is further conditioned on petitioner’s return to this Court
with a motion to reopen and amend his habeas petition, using the same
caption and case number, within sixty days of fully exhausting state court
remedies. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002) (same).
If petitioner changes his mind and decides not to pursue his additional
claim in the state courts, he may move to reopen this case and proceed
on the existing petition within sixty days of the filing date of this order.
If petitioner fails to comply with these conditions, this case may be
dismissed. This case is closed for administrative purposes pending
compliance with these conditions.
IT IS SO ORDERED.
Dated: September 28, 2018
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
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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 September 28, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager
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