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UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN 

 SOUTHERN DIVISION 

PHILLIP CHARLES GIBBS, 

 

 Petitioner, 

 Case No. 14-cv-14028 

 Hon. Matthew F. Leitman 

JEFFREY WOODS, 

 Respondent. 

____________________________________/

ORDER DENYING PETITIONER’S MOTION TO AMEND 

 (ECF #10) BUT STAYING PROCEEDINGS 

AND ADMINISTRATIVELY CLOSING THE CASE

 On October 20, 2014, state prisoner Phillip Charles Gibbs (“Petitioner”) 

filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (the “Petition”). 

(See ECF #1.) The Petition contains claims concerning the partial closure of the 

courtroom at Petitioner’s criminal trial, the use of his pre-arrest silence against him 

during his trial, and the validity of his sentence. Respondent has filed an answer to 

Petition (see ECF #7) and the state court record (see ECF #8), and Petitioner has 

filed a reply to that answer (see ECF #9). The matter is now before the Court on 

Petitioner’s motion to amend or temporarily dismiss the Petition to allow him to 

add a new, unexhausted claim that his trial counsel was ineffective for failing to 

object to a partial courtroom closure during jury voir dire (the “Motion”). (See 

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ECF #10.) Respondent has not answered the instant motion. 

 A federal court has discretion to allow amendment of a habeas petition once 

a responsive pleading has been filed. See Rule 11, Rules Governing 28 U.S.C. § 

2254 Cases; Fed. Rule Civ. Proc. 15(a); Rose v. Lundy, 455 U.S. 509, 520-21 

(1982). However, it is well-settled that a state prisoner filing a habeas petition 

under 28 U.S.C. § 2254 must exhaust available state court remedies as to all of his 

claims. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state prisoners 

must give the state courts one full fair opportunity to resolve any constitutional 

issues by invoking one complete round of the State’s established appellate review 

process”); see also Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). To satisfy the 

exhaustion requirement, the claims must be "fairly presented" to the state courts, 

meaning that the petitioner must have asserted both the factual and legal bases for 

the claims in the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 

2000); Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). 

The claims must also be presented to the state courts as federal constitutional 

issues. See Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). A Michigan 

prisoner must present each issue to the Michigan Court of Appeals and the 

Michigan Supreme Court to satisfy the exhaustion requirement. See Hafley v. 

Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Welch v. Burke, 49 F. Supp. 2d 992, 

998 (E.D. Mich. 1999). While the exhaustion requirement is not jurisdictional, a 

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“strong presumption” exists that a petitioner must exhaust all available state 

remedies before seeking federal habeas review. Granberry v. Greer, 481 U.S. 129, 

131, 134-35 (1987). The burden is on the petitioner to prove exhaustion. See Rust, 

17 F.3d at 160. 

 In this case, Petitioner admits, and the record reflects, that he has not 

exhausted his newly proposed ineffective assistance of counsel claim in the state 

courts. Because this claim is unexhausted, the Court will not allow Petitioner at 

this time to amend the Petition to add the claim. Accordingly, the Court DENIES

Petitioner’s motion to amend his habeas petition. 

 In the alternative, Petitioner requests a “temporary dismissal” of the Petition 

so that he can return to the state courts to exhaust his ineffective assistance of 

counsel claim. The Court construes this request as a motion to stay the 

proceedings and hold the Petition in abeyance. A federal court has discretion to 

stay a habeas proceeding to allow a petitioner to present unexhausted claims to the 

state courts and then return to federal court on a perfected petition. See Rhines v. 

Weber, 544 U.S. 269, 276 (2005) (acknowledging court’s discretion to stay and 

setting forth criteria for stay). 

 The Court finds that a stay is warranted in this case. First, the one-year 

statute of limitations applicable to federal habeas actions, 28 U.S.C. § 2244(d), 

could pose a concern if the Court were to dismiss this action, albeit without 

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prejudice, while Petitioner exhausts his new claim in the state courts. Second, 

Petitioner alleges that the state trial court refused to explore his trial counsel’s 

conduct relative to the courtroom closure issue during the remand hearing, which 

arguably could establish cause for his failure to exhaust the claim on direct appeal. 

Third, the unexhausted claim does not appear to be plainly meritless. Fourth, there 

is no evidence of intentional delay. Lastly, the Court notes that the parties have 

already submitted pleadings and the state court record – and the Court has 

conducted a preliminary review of those materials. Given such circumstances, a 

stay of the proceedings, rather than a dismissal of the petition, is warranted. 

Accordingly, the Court STAYS these proceedings and holds the Petition in 

abeyance pending Petitioner’s exhaustion of state court remedies as to his 

additional claim. 

 The stay is conditioned on Petitioner presenting the unexhausted claim to the 

state courts within 60 days of the filing date of this order by filing a motion for 

relief from judgment with the state trial court. See Hill v. Anderson, 300 F.3d 679, 

683 (6th Cir. 2002) (discussing procedure). The stay is further conditioned on 

Petitioner’s return to this Court, with a motion to reopen and amend the petition, 

using the same caption and case number included at the top of this Order, within 

60 days of fully exhausting his state court remedies. See Palmer v. Carlton, 276 

F.3d 777, 781 (6th Cir. 2002) (adopting approach taken in Zarvela v. Artuz, 254 

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F.3d 374, 381 (2d Cir. 2001)). Should Petitioner fail to comply with any of these 

conditions, the Petition may be dismissed. Finally, this case is CLOSED for 

administrative purposes pending compliance with these conditions described 

above. 

IT IS SO ORDERED. 

s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: December 14, 2015 

 I hereby certify that a copy of the foregoing document was served upon the 

parties and/or counsel of record on December 14, 2015, by electronic means and/or 

ordinary mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113 

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