UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DOUGLAS BURNS,

Petitioner, Civil No. 2:14-CV-13862

HONORABLE NANCY G. EDMUNDS

v. UNITED STATES DISTRICT JUDGE

JEFFREY WOODS,

Respondent.

____________________________________/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR A WRIT OF

HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE.

Douglas Burns, (“Petitioner”), confined at the Chippewa Correctional Facility in

Kincheloe, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. In his pro se application, petitioner challenges his convictions for two counts of

assault with intent to commit murder, M.C.L.A. 750.83, and two counts of possession of a

firearm during the commission of a felony, M.C.L.A. 750.227b.

As part of their answer, respondent alleges that petitioner’s second and third claims

are defaulted because petitioner abandoned the claims by not properly raising them in his

Standard 4 brief on his appeal of right. Petitioner claims that the default should be excused

because appellate counsel was ineffective for not raising these claims in his appeal brief,

forcing petitioner to raise these claims in his own pro se Standard 4 brief. 1

 Petitioner’s

ineffective assistance of appellate counsel claim has yet to be exhausted with the state

courts and thus cannot be used either to excuse this default or as an independent claim for

1

Standard 4 of Administrative Order 2004-6, 471 Mich. cii (2004), “explicitly provides that a pro se

brief may be filed within 84 days of the filing of the brief by the appellant’s counsel, and may be filed with

accompanying motions.” Ware v. Harry, 636 F. Supp. 2d 574, 594, n. 6 (E.D. Mich. 2008). 

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relief.

In lieu of dismissing the petition for a writ of habeas corpus, the Court will hold the

petition in abeyance and will stay the proceedings under the terms outlined below in the

opinion to permit petitioner to return to the state courts to exhaust his ineffective assistance

of appellate counsel claim. The Court will also administratively close the case.

I. Discussion

Petitioner was convicted of the above offenses following a jury trial in the Oakland

County Circuit Court. Petitioner’s conviction was affirmed on appeal. People v. Burns, No.

305037, 2012 WL 4093758 *1 (Mich. Ct. App. Sept. 18, 2012), lv. den. 493 Mich. 941, 826

N.W.2d 719 (Mich. 2013). 

Petitioner filed his petition for a writ of habeas corpus on October 1, 2014, in which

he sought habeas relief on the following grounds:2 

I. Denial of right to present a defense.

II. Ineffective assistance of trial counsel.

III. The trial court inappropriately ignored petitioner’s request for substitute counsel.

Respondent argues that petitioner’s second and third claims are defaulted because

petitioner abandoned the claims by not properly raising them in his Standard 4 brief on his

appeal of right. Petitioner argues that the default should be excused because appellate

counsel was ineffective for not raising these claims in his appeal brief, forcing petitioner to

raise these claims pro se in an inadequate manner in his own Standard 4 brief. 

2

 Under the prison mailbox rule, this Court assumes that petitioner filed his habeas petition on

October 1, 2014, the date that it was signed and dated. See See Towns v. U.S., 190 F.3d 468, 469 (6th

Cir. 1999). 

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Ineffective assistance of counsel may establish cause for a procedural default. See

Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000). However, for ineffective assistance

of counsel to constitute cause to excuse a procedural default, that claim itself must be

exhausted in the state courts. Id. 

A review of petitioner’s briefs on appeal to the Michigan Court of Appeals and the

Michigan Supreme Court shows that petitioner never raised an ineffective assistance of

appellate counsel claim on his direct appeal. Petitioner’s claim of ineffective assistance of

appellate counsel is subject to the exhaustion requirement. See Baldwin v. Reese, 541 U.S.

27, 30-33 (2004). To the extent that petitioner is attempting to argue ineffective assistance

of appellate counsel either to excuse the default or as an independent claim, he must first

exhaust his claim in the state courts.

The Court’s only concern in dismissing the current petition on exhaustion grounds

involves the possibility that petitioner might be prevented under the one year statute of

limitations contained within 28 U.S.C. § 2244(d)(1) from re-filing a petition for a writ of

habeas corpus following the exhaustion of his claim in the state courts. 

The U.S. Supreme Court has suggested that a habeas petitioner who is concerned

about the possible effects of his state post-conviction filings on the AEDPA’s statute of

limitations could file a “protective” petition in federal court and then ask for the petition to

be held in abeyance pending the exhaustion of state post-conviction remedies. See Pace

v. DiGuglielmo, 544 U.S. 408, 416 (2005)(citing Rhines v. Weber, 544 U.S. 269 (2005)). 

A federal court may stay a federal habeas petition and hold further proceedings in

abeyance pending resolution of state court post-conviction proceedings, provided there is

good cause for failure to exhaust claims and that the unexhausted claims are not “plainly

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meritless.” Rhines, 544 U.S. at 278.3

In the present case, petitioner’s ineffective assistance of appellate counsel claim

does not appear to be “plainly meritless.” Petitioner also has good cause for failing to raise

his ineffective assistance of appellate counsel claim earlier because state post-conviction

review would be the first opportunity that he had to raise this claim in the Michigan courts.

See Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010). 

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 F.App’x. 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. Mich. 2015). 

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 F.App’x. at 306 (district court erred

in dismissing petition containing only exhausted claims, as opposed to exercising its

3

This Court has the discretion to stay the petition and hold it in abeyance even though petitioner

did not specifically request this Court to do so. See e.g. Banks v. Jackson, 149 F.App’x. 414, 422, n. 7 (6th

Cir. 2005).

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jurisdiction over petition, merely because petitioner had independent proceeding pending

in state court involving other claims). 

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. at 278. 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 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. See Geeter v. Bouchard, 293 F. Supp. 2d 773, 775 (E.D. Mich. 2003).

Petitioner’s method of properly exhausting his claim in the state courts would be

through filing a motion for relief from judgment with the Oakland 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

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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). 

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 a 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.

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s/ Nancy G. Edmunds 

HONORABLE NANCY G. EDMUNDS

UNITED STATES DISTRICT JUDGE 

DATED: January 20, 2017

CERTIFICATION

I hereby certify that a copy of this order was served upon the parties/counsel of

record on this 20th day of January, 2017 by regular mail and/or CM/ECF. 

s/ Carol J. Bethel 

Case Manager

Date: 1/20/17

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