UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 In 2012, a state jury convicted Petitioner Aaron Thomas of three firearm offenses, 

including felon in possession of a firearm. The Michigan Court of Appeals affirmed Thomas’ 

conviction and sentence, see generally People v. Thomas, No. 309420, 2013 WL 3107484 

(Mich. Ct. App. June 20, 2013), and the Michigan Supreme Court denied Thomas leave to appeal 

further, People v. Thomas, 840 N.W.2d 323 (Mich. Dec. 23, 2013). 

In August 2014, Thomas filed a petition here, asking this Court to grant him a writ of 

habeas corpus for two reasons: (1) the evidence adduced at trial was insufficient for a jury to 

conclude that he was guilty beyond a reasonable doubt in violation of his Fourteenth Amendment 

rights and (2) the admission of prior-conviction evidence at trial violated his Sixth and 

Fourteenth Amendment rights. (Dkt. 1, Pet. for Habeas at Pg ID 3.) Thomas says these claims 

are exhausted, i.e., the state courts have already had an opportunity to rule on them. (Pet. for 

Habeas at Pg ID 3.) It would thus appear that these claims, once Respondent Catherine Stoddard 

files her response, are ready for this Court’s resolution. 

 Nonetheless, about a month after he filed his petition, on September 11, 2014, Thomas 

asked this Court to stay this case and hold his habeas petition in abeyance. (See generally Dkt. 7, 

AARON THOMAS, 

 Petitioner, 

 

v. 

 

CATHERINE STODDARD, 

 Respondent. 

Case No. 14-cv-13232 

Honorable Laurie J. Michelson 

OPINION AND ORDER GRANTING MOTION TO STAY [7] 

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Mot. to Stay.) Thomas explains that after the Michigan Supreme Court denied leave to appeal his 

conviction on the two grounds indicated above, he learned of a possible third grounds for appeal: 

a trial-court order that had directed the prosecution to, among other things, provide him with “all 

scientific and laboratory reports.” (Dkt. 7, Mot. to Stay ¶¶ 6, 7.) Thomas says that laboratory 

reports have the potential to exculpate him by showing that his fingerprints were not found on 

the weapon he was convicted of possessing. (See Mot. to Stay ¶ 8.) Thomas further asserts the 

transcript of the state-court proceedings will show that the police suppressed this exculpatory 

information. (Id.) Thomas explains that in the month before he filed his habeas petition, he filed 

motions with the state trial court asking for the transcript and other trial-court documents. (Mot. 

to Stay ¶¶ 9–12.) But, as of the filing of his motion to stay, “the trial court judge ha[d] not 

entertained” Thomas’ requests. (Mot. to Stay ¶ 13.) Thomas thus asks this Court to hold his 

petition, which he asserts contains only exhausted claims, in abeyance while he “returns to state 

court to exhaust additional claims.” (Mot. to Stay at 7.) 

 Thomas says that failing to stay his petition while he exhausts the third claim could result 

in the claim being barred by the Antiterrorism and Effective Death Penalty Act’s statute of 

limitations. (Mot. to Stay at 3 ¶ 15, at 7.) Under AEDPA, a one-year limitations period applies to 

an application for a writ of habeas corpus, with the clock starting from the latest of several dates, 

here, apparently, “the date on which the judgment became final by the conclusion of direct 

review or the expiration of the time for seeking such review,” 28 U.S.C. § 2244(d)(1)(A). The 

Michigan Supreme Court denied leave on December 23, 2013, meaning that Thomas’ conviction 

became “final” under § 2244(d)(1)(A) at the expiration of his ninety days to seek certiorari from 

the United States Supreme Court, i.e., on or around March 23, 2014. See, e.g., Johnson v. 

Rapelje, 542 F. App’x 453, 454 (6th Cir. 2013). Although March 23, 2014 was still about six 

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months away when Thomas filed his motion to stay, he apparently believed that if he dismissed 

his petition, filed a motion based on his suppressed-evidence claim in state court, and then refiled 

a habeas petition including that now-exhausted claim (assuming the state court did not grant 

relief), he would be time-barred by AEDPA’s statute of limitations. (See Mot. to Stay at 15.) But 

with proper diligence, it is hard to say that three months to file a state-court motion and three 

months to refile a perfected habeas petition is not sufficient. See 28 U.S.C. § 2244(d)(2) (“The 

time during which a properly filed application for State post-conviction or other collateral review 

with respect to the pertinent judgment or claim is pending shall not be counted toward any period 

of limitation under this subsection.”). In any event, dismissal at this point, with less than a month 

remaining on the limitations period, would pose a great challenge for Thomas to make the trip to 

state court and back—even with the tolling provided by § 2244(d)(2). 

 In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court addressed a similar—but 

not identical—situation. There, Charles Rhines had filed a “mixed” petition for habeas corpus: it 

contained both claims that he had given the state courts a full opportunity to adjudicate and those 

he had not. Id. at 272–73. The district court opted to stay the mixed petition so Rhines could 

exhaust the petition’s unexhausted claims in state court, but the Eighth Circuit Court of Appeals 

thought this procedure problematic given that, under Rose v. Lundy, 455 U.S. 509, 522 (1982), a 

district court was required to dismiss a habeas petition containing both unexhausted and 

exhausted claims. See Rhines, 544 U.S. at 273. Although not disagreeing with the appellate 

court’s reading of Rose, the Supreme Court noted, “[w]hen we decided [Rose v.] Lundy, there 

was no statute of limitations on the filing of federal habeas corpus petitions. As a result, 

petitioners who returned to state court to exhaust their previously unexhausted claims could 

come back to federal court to present their perfected petitions with relative ease.” Rhines, 544 

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U.S. at 274. Post-AEDPA, the Supreme Court explained, “If a petitioner files a timely but mixed 

petition in federal district court, and the district court dismisses it under Lundy after the 

limitations period has expired, this will likely mean the termination of any federal review. . . . 

Similarly, if a district court dismisses a mixed petition close to the end of the 1-year period, the 

petitioner’s chances of exhausting his claims in state court and refiling his petition in federal 

court before the limitations period runs are slim.” Id. at 275. 

“[R]ecogniz[ing] the gravity of this problem,” the Court turned to the “stay-andabeyance” solution employed by the district court and considered the competing interests at 

stake. Id. at 275–76. On the one hand, district courts have discretion to manage their dockets, 

including by issuing stays, and “AEDPA [did] not deprive district courts of that authority,” id. at 

276. And, as just discussed, in some situations, dismissal rather than stay would foreclose habeas 

review to a prisoner. See id. at 278. On the other hand, in enacting AEDPA, Congress expressed 

its interest in finality and in encouraging state prisoners to seek relief from state courts before 

their federal counterparts. Id. at 276. “Stay and abeyance, if employed too frequently, ha[d] the 

potential to undermine these twin purposes.” Id. at 277. Thus, the Court in Rhines concluded that 

“stay and abeyance should be available only in limited circumstances. Because granting a stay 

effectively excuses a petitioner’s failure to present his claims first to the state courts, stay and 

abeyance is only appropriate when the district court determines there was good cause for the 

petitioner’s failure to exhaust his claims first in state court.” Id. at 277. Additionally, “even if a 

petitioner had good cause for that failure, the district court would abuse its discretion if it were to 

grant him a stay when his unexhausted claims are plainly meritless.” Id. And the Court in Rhines

added, “if a petitioner engages in abusive litigation tactics or intentional delay, the district court 

should not grant him a stay at all.” Id. at 278. Notably, if a district court issues a stay under 

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Rhines, it stays a mixed petition and, thus, effectively treats unexhausted claims as timely filed. 

King v. Ryan, 564 F.3d 1133, 1140 (9th Cir. 2009) (“When implemented, the Rhines exception 

eliminates entirely any limitations issue with regard to the originally unexhausted claims, as the 

claims remain pending in federal court throughout.”); see also Pace v. DiGuglielmo, 544 U.S. 

408, 416 (2005) (providing that where prisoner had a pending motion for state post-conviction 

relief, but had good reason to doubt whether he had “properly filed” the motion so as to invoke 

AEDPA’s state-post-conviction-relief tolling under 28 U.S.C. § 2244(d)(2), prisoner might file a 

“protective” application for habeas to stop the statute-of-limitations clock on the still 

unexhausted claims). 

Because less than a month of AEDPA’s one-year limitations period remains, the statute 

of limitations problem that confronts Thomas appears similar to the hypothetical proposed in 

Rhines: should the Court now dismiss his habeas petition, he would have difficulty timely 

refiling it after pursuing any unexhausted claims in state court. See Rhines, 544 U.S. at 275 

(noting that if court dismissed habeas petition “close to the end of the 1-year period, the 

petitioner’s chances of exhausting his claims in state court and refiling his petition in federal 

court before the limitations period [ran would be] slim.”). 

But there is an important difference: dismissal is not an option for the Court. Thomas’ 

habeas petition, at least as far as the Court can tell, is not mixed like Rhines’ was. A federal 

district court confronted with a mixed petition has these two options: dismiss the petition (Rose’s 

rule) or, if certain criteria are met, stay the petition (Rhines’ exception). See King, 564 F.3d at 

1140 (“Rhines carved out an exception to Rose’s total exhaustion rule, allowing a mixed petition 

to remain pending in federal court under limited circumstances.”). The options before this Court 

are different: proceed to adjudicate the two exhausted claims in Thomas’ petition while Thomas 

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contemporaneously returns to state court on other claims, or stay this case while Thomas does so. 

See Nowaczyk v. Warden, New Hampshire State Prison, 299 F.3d 69, 80 (1st Cir. 2002) (“The 

situation here is critically different [from our precedents involving mixed petitions]. Nowaczyk’s 

petition contained only exhausted claims. Nothing prevented the district court from adjudicating 

those claims immediately[.]”). Thus, the question for this Court is whether to proceed in parallel 

(on the exhausted claims) with state-court post-conviction proceedings (on the unexhausted 

claim) or to hold off until those state proceedings conclude. These were not the options 

confronting the district court in Rhines. 

Obviously, had Thomas sought to amend his habeas petition to add the suppressedevidence claim, and if the Court were to have granted that request, his petition would become 

mixed, and then Rhines might be directly applicable. But this procedure presents its own 

difficulties. It is well settled that the standard to permit amendment of a habeas petition is that set 

forth by Federal Rule of Civil Procedure 15. See 28 U.S.C. § 2242 (providing that an application 

for habeas “may be amended or supplemented as provided in the rules of procedure applicable to 

civil actions); Mayle v. Felix, 545 U.S. 644, 655 (2005) (providing that Rule 15 is “made 

applicable to habeas proceedings by § 2242, Federal Rule of Civil Procedure 81(a)(2), and 

Habeas Corpus Rule 11”). And it is well settled that leave under Rule 15 should not be granted 

where the claim to be added is futile. Foman v. Davis, 371 U.S. 178, 182 (1962). And our Court 

of Appeals says that a claim is futile if it cannot “withstand a Rule 12(b)(6) motion to dismiss.” 

Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000). This in turn invokes 

the plausibility standard of Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. 

Iqbal, 556 U.S. 662 (2009). See e.g., In re B & P Baird Holdings, Inc., No. 14-1060, 2015 WL 

24922, at *4 (6th Cir. Jan. 2, 2015). And even if Twombly and Iqbal’s standards do not apply to 

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amendments of a habeas petition, the Supreme Court has said that the pleading standard for a 

habeas petition is greater than that demanded by Rule 8. See Mayle, 545 U.S. at 655; Advisory 

Committee Note on Habeas Corpus Rule 4 (“‘[N]otice’ pleading is not sufficient, for the petition 

is expected to state facts that point to a real possibility of constitutional error.” (internal quotation 

marks omitted)). These standards governing amendment of a habeas petition, coupled with the 

rule of comity and the aims of AEDPA, counsel against deciding whether Thomas’ suppressedevidence claim is futile before the state courts pass upon that claim. If the Court were to do so, it 

might affect the state court’s view of the claim. Cf. Rose, 455 U.S. at 518 (“Because it would be 

unseemly in our dual system of government for a federal district court to upset a state court 

conviction without an opportunity to the state courts to correct a constitutional violation, federal 

courts apply the doctrine of comity, which teaches that one court should defer action on causes 

properly within its jurisdiction until the courts of another sovereignty with concurrent powers, 

and already cognizant of the litigation, have had an opportunity to pass upon the matter.” 

(internal quotation marks omitted)). Additionally, by allowing the state court to address the claim 

in the first instance, this Court will benefit from a crystalized assertion of the claim, thereby 

easing the futility assessment. 

As Thomas has not sought to amend his petition (and the Court would be unlikely to 

engage in that analysis even if he had), the Court will consider factors similar to those set out in 

Rhines, but the Court’s discretion will be guided by different considerations from those in 

Rhines. As in Rhines, the Court still considers the merit of the unexhausted claims. But the 

primary reasons it does so differs from those discussed in Rhines. For instance, 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. 

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In that scenario, should the petitioner subsequently seek habeas relief on the claims the state 

courts rejected, he would have to clear the high hurdle of filing a second habeas petition. See 28 

U.S.C § 2244(b)(2); McLeod v. Peguese, 337 F. App’x 316, 324 (4th Cir. 2009) (“Respect for 

the finality of criminal judgments provides the impetus for the heavy burden placed on 

successive § 2254 petitioners by § 2244(b)(2)(b)(ii).”). The risk, then, is that Petitioner might 

have to meet a higher standard in order to present the court with potentially meritorious claims 

that he did not include in the original petition. 

Also relating to the merit of the unexhausted claims is the efficient use of judicial 

resources. If 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. See Nowaczyk, 299 F.3d at 78 (“Considerations of judicial economy support the district 

court’s decision to withhold decision on [habeas] claims that could have been mooted by the 

pending state proceedings.”); cf. Colorado River Water Conservation Dist. v. United States, 424 

U.S. 800, 817 (1976) (“[T]here are principles unrelated to considerations of proper constitutional 

adjudication and regard for federal-state relations which govern in situations involving the 

contemporaneous exercise of concurrent jurisdictions, either by federal courts or by state and 

federal courts. These principles rest on considerations of wise judicial administration, giving 

regard to conservation of judicial resources and comprehensive disposition of litigation.” 

(internal quotation marks omitted)). The flip side is also relevant: if the exhausted claims in the 

petition appear to be very clear bases for habeas relief, proceeding to adjudicate those claims 

would likely save state-court resources. In deciding whether to proceed or stay, the Court also 

considers that its adjudication of Thomas’ exhausted claims might impact the state courts’ 

adjudication of his unexhausted claims if the claims overlap factually or legally. 

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Accordingly, where, as here, a habeas petition contains only exhausted claims, and the 

petitioner seeks to stay the petition so that he can return to state court on unexhausted claims not 

yet part of the petition, the Court believes that its discretion to stay the petition is informed both 

by the potential for parallel federal habeas and state post-conviction proceedings and Rhines. 

Chief among these considerations is the apparent merit of the unexhausted and exhausted claims, 

and, relatedly, whether this Court would benefit from a state-court ruling on the unexhausted 

claims. Cf. Rhines, 544 U.S. at 277–78 (directing federal habeas courts to consider whether 

unexhausted claims in a mixed habeas petition are “plainly meritless”). But Rhines’ “good 

cause” requirement is not irrelevant: the Court is less likely to find parallel-litigation unfairly 

prejudicial to a habeas petitioner if the petitioner lacks a good reason for having created that 

potential in the first place. 

Here, the relevant considerations weigh in favor of a stay. The Court is not now in a 

position to determine whether, as Thomas claims, the police suppressed exculpatory laboratory 

reports. So the Court cannot say that his unexhausted claim is plainly meritless. On the flip side, 

a casual review of Thomas’ petition does not reveal a claim that plainly warrants habeas relief.1

Further, should the state court deny post-conviction relief (such that Thomas’ habeas petition 

does not become moot), the Court will still benefit from the state courts’ adjudication of this 

claim in determining whether to permit Thomas to amend his petition to add the claim. And the 

Court foresees no prejudice to Respondent in staying this case—indeed, Stoddard has not 

opposed Thomas’ motion to stay despite ample opportunity to do so. On the other hand, Thomas 

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, Thomas would have the heavy burden of 

 

1

 It appears that the portion of Thomas’ brief corresponding to his habeas claim based on 

the introduction of prior convictions was not submitted to the Court. 

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satisfying 28 U.S.C. § 2244(b)(2)’s second-or-successive-petition requirements should he 

ultimately seek habeas relief on his suppressed-evidence claim. Finally, the Court finds that 

Thomas has demonstrated “good cause” for the failure to exhaust state remedies: he says he did 

not know about the trial-court order directing the production of laboratory reports until after the 

Michigan Supreme Court denied leave. 

Accordingly, the Court hereby GRANTS Thomas’ motion to stay and hold his habeas 

petition in abeyance. (Dkt. 7.) Thomas must file a motion for relief from judgment in state court 

within 60 days of entry of this order and then immediately file a notice with this Court that 

includes proof of the state-court filing and a copy of the filing itself. If he fails to timely notify 

the Court that he has sought state-court post-conviction relief, the Court will proceed to 

adjudicate the petition as it stands. Within 60 days after the conclusion of the state-court postconviction proceedings, Thomas may move to amend his habeas petition to add the suppressedevidence claim. Otherwise, Thomas must inform the Court that he will proceed with the petition 

as is. Because Thomas filed his motion to stay five months ago, the Court will equitably toll 

AEDPA’s statute of limitations during each of the 60-day periods, thereby placing Thomas in the 

position he would have been in had the Court ruled on the motion soon after it was filed. See 

Robertson v. Simpson, 624 F.3d 781, 783 (6th Cir. 2010) (“The doctrine of equitable tolling 

allows courts to toll a statute of limitations when a litigant’s failure to meet a legally-mandated 

deadline unavoidably arose from circumstances beyond that litigant’s control.” (internal 

quotation marks omitted)).2

 To avoid administrative difficulties, the Court orders the Clerk of 

 

2

 The Court recognizes that equitable tolling should be “used sparingly” to pause 

AEDPA’s clock. Simpson, 624 F.3d at 784. But equitable tolling is not part of the general 

procedure outlined in this opinion—the Court applies it here only due to the delay in resolving 

Thomas’ motion, delay not attributable to Thomas’ conduct. Had the Court ruled earlier, 

equitable tolling would not have been necessary given that Thomas would still have had many 

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Court to close this case for statistical purposes only. Nothing in this order shall be considered a 

disposition of Thomas’ petition. 

SO ORDERED. 

s/Laurie J. Michelson 

LAURIE J. MICHELSON 

UNITED STATES DISTRICT JUDGE 

Dated: March 5, 2015 

CERTIFICATE OF SERVICE 

The undersigned certifies that a copy of the foregoing document was served on the 

attorneys and/or parties of record by electronic means or U.S. Mail on March 5, 2015. 

 s/Jane Johnson 

Case Manager to 

 Honorable Laurie J. Michelson 

 

months left on the one-year clock and he is entitled to statutory tolling during post-conviction 

proceedings. See 28 U.S.C. § 2244(d)(2); Cowherd v. Million, 380 F.3d 909, 913–14 (6th Cir. 

2004) (en banc) (holding that, under §2244(d)(2), a state post-conviction motion tolled AEDPA’s 

statute of limitations so long as the motion challenged the state-court “judgment” and, therefore, 

tolling applied even if the state post-conviction motion did not raise federal claim). On the other 

hand, nothing prevented Thomas from filing for post-conviction relief pending this Court’s 

disposition of his motion to stay, which would have likely obviated the need for any equitable 

tolling. In the future, petitioners facing Thomas’ situation would be prudent to elect that route. 

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