UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

AVERN LEE BURNSIDE,

Petitioner,

v.

STEVEN RIVARD,

Respondent. 

 /

Case Number: 2:15-CV-10212

HONORABLE VICTORIA A. ROBERTS

OPINION AND ORDER DENYING PETITIONER’S

MOTION TO HOLD HABEAS PETITION IN ABEYANCE, AND

DISMISSING PETITION WITHOUT PREJUDICE

I. Introduction

Michigan state prisoner Avern Lee Burnside filed a petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254, asserting he is being held in violation of his

constitutional rights. Petitioner was convicted in the Genesee County Circuit Court of

assault with intent to murder, MICH. COMP. LAWS § 750.83; carrying a concealed weapon,

MICH. COMP. LAWS § 750.227(2); felon in possession of a firearm, MICH. COMP. LAWS §

750.224f; discharging a weapon from a vehicle, MICH. COMP. LAWS § 750.234a, and

possession of a firearm during the commission of a felony, MICH. COMP. LAWS §

750.227b. The matter is currently before the Court on Petitioner’s motion to hold the

petition in abeyance so that he can raise unexhausted claims in the state courts. The

Court denies Petitioner’s motion for a stay and instead dismisses without prejudice the

habeas petition. The Court also denies a certificate of appealability.

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II. Procedural History

Petitioner was convicted by a jury in Genesee County Circuit Court. On March

28, 2012, he was sentenced to 20 to 40 years’ imprisonment for the assault with intent to

murder conviction, two years’ imprisonment for the felony-firearm conviction, and 2-1/2

to 15 years’ imprisonment for each of the three remaining convictions. 

Petitioner filed an appeal of right with the Michigan Court of Appeals raising these

claims: (i) the trial court erred in allowing police sergeant to testify about the behavior of

domestic violence victims; (ii) the prosecutor committed misconduct because her opening

statement was argumentative, she vouched for the credibility of prosecution witnesses,

and elicited improper opinion testimony; (iii) prior bad acts evidence was improperly

admitted; (iv) right to a speedy trial was violated; and (v) trial counsel was ineffective.

The Michigan Court of Appeals affirmed Petitioner’s convictions. People v. Burnside,

No. 309807, 2014 WL 1515265 (Mich. Ct. App. Apr. 17, 2014) (unpublished). Petitioner

then filed an application for leave to appeal with the Michigan Supreme Court raising the

same claims. The Michigan Supreme Court denied leave to appeal. People v. Burnside,

497 Mich. 889 (Mich. Oct. 28, 2014). 

Petitioner filed his federal habeas petition on January 14, 2015. 

III. Discussion

Petitioner seeks a stay so that he may raise unexhausted claims in state court. A

prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254 must first

exhaust all state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state

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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”). To satisfy this requirement, the claims must be “fairly presented” to the state

courts, meaning that the prisoner must have asserted both the factual and legal bases for

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

2000). 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). While the exhaustion

requirement is not jurisdictional, a “strong presumption” exists that a petitioner must

exhaust available state remedies before seeking federal habeas review. See Granberry v.

Greer, 481 U.S. 129, 131, 134-35 (1987). The burden is on the petitioner to prove

exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

A prisoner is required to comply with this exhaustion requirement as long as there

is still a state-court procedure available for him to do so. See Adams v. Holland, 330 F.3d

398, 401 (6th Cir. 2003). In this case, a procedure is available to the petitioner. He may

filed a motion for relief from judgment in the Genesee County Circuit Court under

Michigan Court Rule 6.502. If that motion is denied, he may seek review by the

Michigan Court of Appeals and Michigan Supreme Court by filing an application for

leave to appeal. Mich. Ct. R. 6.509; Mich. Ct. R. 7.203; Mich. Ct. R. 7.302. Nasr v.

Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997). 

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

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federal court on a perfected petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). 

However, stay and abeyance is available only in “limited circumstances” such as when

the one-year statute of limitations applicable to federal habeas actions poses a concern,

and when the petitioner demonstrates “good cause” for the failure to exhaust state court

remedies before proceeding in federal court and the unexhausted claims are not “plainly

meritless.” Id. at 277.

Petitioner has not shown the need for a stay. Although he may be concerned that

the one-year statute of limitations applicable to federal habeas actions, see 28 U.S.C. §

2244(d), poses a problem, it does not. The one-year period does not begin to run until 90

days after the conclusion of direct appeal. Gonzalez v. Thaler, — U.S. —, 132 S. Ct. 641,

653 (2012) (stating that a conviction becomes final when the time for filing a certiorari

petition expires). The Michigan Supreme Court denied leave to appeal on October 28,

2014, and Petitioner has 90 days from that date, until January 26, 2015, to seek a writ of

certiorari with the United States Supreme Court. Petitioner filed his federal habeas

petition on January 14, 2015. Thus, the limitations period had not even commenced at the

time he filed his petition. 

Assuming that Petitioner files an appropriate post-conviction motion in the state

court within a reasonable portion of time, the remaining portion of the limitations period

allows him ample time to re-file his petition including the exhausted and unexhausted

claims, after the conclusion of any proceedings on his motion in the state trial and

appellate courts, because “[t]he time during which a properly filed application for State

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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.” 28

U.S.C. § 2244(d)(2). “[A] post-conviction or collateral proceeding toll[s] the [AEDPA]

statute of limitations, but does not restart it.” Anderson v. Brunsman, No. 11-3784, 562

F.3d 426, 430 (6th Cir. 2014) (citing 28 U.S.C. § 2244(d)(2)). Thus, because he has time

to return to state court to exhaust his remedies, Petitioner has not shown the need for a

stay and a non-prejudicial dismissal of the habeas petition is appropriate.

IV. Conclusion

Accordingly, the Court DENIES Petitioner’s Motion to Hold In Abeyance

Petitioner’s Petition for Writ of Habeas Corpus [dkt. #4] and DISMISSES WITHOUT

PREJUDICE the petition for a writ of habeas corpus. If Petitioner wishes to proceed on

the claims contained in the petition and abandon his unexhausted claims, he may move to

reopen these proceedings within thirty days from the date of the Order. 

The Court DENIES WITHOUT PREJUDICE Petitioner’s Motion for

Appointment of Counsel [dkt. #3]. 

Before Petitioner may appeal the Court’s decision, a certificate of appealability

must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of

appealability may issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a federal court denies a

habeas claim on procedural grounds without addressing the merits, a certificate of

appealability should issue if it is shown that jurists of reason would find it debatable

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whether the petitioner states a valid claim of the denial of a constitutional right, and that

jurists of reason would find it debatable whether the district court was correct in its

procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Reasonable

jurists could not debate the correctness of the Court’s procedural ruling. Accordingly, the

Court DENIES a certificate of appealability. This case is closed.

SO ORDERED. 

S/Victoria A. Roberts

VICTORIA A. ROBERTS

UNITED STATES DISTRICT JUDGE

Dated: 1/30/2015

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