Miller v. Pollard

Filing 19

ORDER signed by Judge Lynn Adelman on 4/11/13 granting 18 Motion for Reconsideration. This case is stayed until the proceedings in state court relating to petitioners two additional claims have concluded. (cc: all counsel, via USPS to petitioner) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MICHAEL MARIO MILLER,
Petitioner,
v.

Case No. 12-C-0945

WILLIAM POLLARD, Warden,
Waupun Correctional Institution,
Respondent.

ORDER
On November 19, 2012, in response to respondent’s motion to dismiss the petition
on the ground that it contained both exhausted and unexhausted claims, petitioner filed a
motion for stay and abeyance pursuant to Rhines v. Weber, 544 U.S. 269 (2005). On
January 18, 2013, I issued an order denying that motion on the ground that there was no
need for stay-and-abeyance because petitioner agreed to abandon the unexhausted claim
and the respondent conceded that the petitioner had exhausted his two remaining claims.
However, petitioner has asked me to reconsider this decision. He states that at the time
he filed his stay-and-abeyance motion, he was unable to utilize the assistance of an inmate
that had been helping him prepare his filings in this case and therefore was unable to
adequately explain his need for stay and abeyance.
In his motion for reconsideration, petitioner makes clear that he has two claims
pending in state court that have not been fully exhausted, and that those claims are
different than the two claims he has included in his petition. Thus, although his petition
currently contains only exhausted claims, he wishes to finish exhausting the two additional
claims in state court and then add them to the petition. However, should I enter a decision

on the merits of the current petition before petitioner exhausts his two additional claims,
petitioner would likely be barred from obtaining federal review of those claims under the
principles relating to second or successive habeas petitions. See 28 U.S.C. § 2244(b).
Moreover, if I dismiss the current petition without prejudice, there is a danger that when
petitioner attempts to file a new petition after exhausting his additional claims in state court,
his original claims will be barred by the one-year statute of limitations in 28 U.S.C.
§ 2244(d). For this reason, petitioner prefers the stay-and-abeyance procedure, which
would avoid any problems with either the second-or-successive doctrine or the statute of
limitations.
The respondent has not indicated that he opposes the petitioner’s renewed request
for stay and abeyance. Given this, and given that it appears that petitioner has good
reasons for requesting stay and abeyance, his motion for reconsideration will be granted.
Accordingly, IT IS ORDERED that petitioner’s motion for reconsideration is
GRANTED.

This case shall be stayed until the proceedings in state court relating to

petitioner’s two additional claims have concluded.
Dated at Milwaukee, Wisconsin, this 11th day of April, 2013.
s/ Lynn Adelman
__________________________________
LYNN ADELMAN
District Judge

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