UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

______________________________________________________________________

THOMAS HOLDEN,

 

Petitioner,

v. Civil No. 2:14-CV-13701

THOMAS WINN,

Respondent.

____________________________________/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF 

HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE

Thomas Holden, (“Petitioner”), presently confined at the Saginaw Correctional

Facility in Freeland, Michigan, seeks the issuance of a writ of habeas corpus pursuant

to 28 U.S.C. § 2254. In his pro se application, Petitioner challenges his convictions for 

assault with intent to commit murder,1 possessing a firearm during the commission of a

felony (felony firearm), second offense,2 and felon in possession of a firearm.3

Petitioner has also asked the court to hold the petition in abeyance in order to

permit him to return to the state courts and initiate post-conviction proceedings there, in

order to exhaust additional ineffective assistance of counsel claims that were not raised

in his direct appeal. Petitioner raises claims of “(1) Six Amendment [sic] violation,

choice of retainer counsel; (2) IAC failure to properly object and failure to investigate;

and (3) IAC - Appellate Counsel for failure to investigate and raise these claims on

1

Mich. Comp. Laws § 750.83; Mich. Stat. Ann. 28.278. 

2

Mich. Comp. Laws § 750.227b; Mich. Stat. Ann. 28.424 (2).

3

Mich. Comp. Laws § 750.224f.; Mich. Stat. Ann. 28.421(6).

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direct appeal.” (Dkt. # 12, Pg. ID 515.)

For the reasons stated below, 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 claims. The court will also administratively

close the case.

I. BACKGROUND

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

County Circuit Court. Petitioner’s conviction was affirmed on appeal. People v. Holden,

No. 308164, 2013 WL 116522 (Mich. Ct. App. Mar. 21, 2013). On September 22, 2014,

Petitioner filed this application for a writ of habeas corpus.4

 Petitioner seeks habeas

relief on the grounds that he raised in the state courts on his direct appeal. 

II. STANDARD

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, N.H. 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 Fed. 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

4

Under the prison mailbox rule, this court assumes that Petitioner filed his habeas petition on

September 22, 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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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 Fed. App’x at 306 (district court erred in

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

jurisdiction over petition, merely because petitioner had independent proceeding

pending in state court involving other claims). 

III. DISCUSSION

Petitioner argues “that it is in his best interest to present claims of ineffective

assistance of counsel to the trial court . . . prior to having his defaulted habeus corpus

issues decided by this court[,]” he “respectfully requests that this Court hold his petition

in abeyance pending the resolution and exhaustion of his claims in the trial court.” (Dkt.

# 12, Pg. ID 515.) 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 meritless.” Rhines v. Weber, 544 U.S. 269, 278 (2005). A

common circumstance calling for abating a habeas petition arises when the original

petition was timely filed, but a second, exhausted habeas petition would be time barred

by the Antiterrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations.

See Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002). 

Various considerations merit holding the petition in abeyance while Petitioner

returns to the state courts to exhaust his new claims. In particular, 

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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. 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. 

Thomas, 89 F. Supp. 3d at 942 (citing 28 U.S.C. 2244(b)(2)). Moreover, “[I]f 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.”

Id. 

Other considerations merit granting a stay as well. This court is currently not in a

position to determine whether Petitioner’s new claims have any merit, thus, the court

cannot say that Petitioner’s claims are “plainly meritless.” Id. at 943. Nor, on the other

hand, can the court at this time say that Petitioner’s new claims plainly warrant habeas

relief. Id. If the state courts deny post-conviction relief, this court would still benefit from

the state courts’ adjudication of these claims in determining whether to permit Petitioner

to amend his petition to add these claims. Id. 

Finally, this court sees no prejudice to Respondent in staying this case, whereas

Petitioner “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,

[Petitioner] would have the heavy burden of satisfying 28 U.S.C. § 2244(b)(2)’s secondor-successive-petition requirements” should he seek habeas relief on his new claims.

Thomas, 89 F. Supp. 3d at 943. 

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

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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 will hold the petition in abeyance to allow Petitioner to initiate postconviction proceedings in the state courts. This tolling is conditioned upon Petitioner

initiating his state post-conviction remedies within thirty days of receiving this court’s

order and returning to federal court within thirty days of completing the exhaustion of

state court post-conviction remedies. Rhines 544 U.S. at 269 (“a brief interval” is

“normally 30 days”); Hargrove, 300 F.3d at 721; see also Geeter v. Bouchard, 293 F.

Supp. 2d 773, 775 (E.D. Mich. 2003).

Petitioner’s method for properly exhausting these claims in the state courts would

be through filing a motion for relief from judgment with the Wayne 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; see also

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 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). 

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IV. CONCLUSION

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 thirty 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 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 thirty 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 only those 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.

S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

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Dated: January 28, 2016

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, January 28, 2016, by electronic and/or ordinary mail.

 S/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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