UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARRYL CAIN,

Petitioner,

Case Number 15-10096

v. Honorable David M. Lawson

LORI GIDLEY,

Respondent.

__________________________/

OPINION AND ORDER HOLDING IN ABEYANCE PETITION FOR WRIT OF

HABEAS CORPUS AND ADMINISTRATIVELY CLOSING CASE

On January 7, 2015, the petitioner, Darryl Cain, presently confined at the Oaks Correctional

Facility in Manistee, Michigan, filed a pro se petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. On March 12, 2015, he filed a motion to stay and hold the petition in abeyance, so that he

might return to state court to exhaust additional claims. The respondent has not filed any response

to the petitioner’s motion to stay, and the time for doing so has passed. The Court finds that the

request is lawful and will grant the motion. 

I.

On October 27, 2010, after a jury trial in the Wayne County, Michigan circuit court, the

petitioner was convicted of carjacking, Mich. Comp. Laws § 750.529a; unlawfully driving away a

motor vehicle, Mich. Comp. Laws § 750.413; two counts of receiving and concealing stolen

property, Mich. Comp. Laws § 750.5357; possession of a firearm by a felon, Mich. Comp. Laws §

750.224f; and possession of a firearm during the commission of a felony (felony firearm), Mich.

Comp. Laws § 750.227b. On November 12, 2010, he was sentenced to 20 to 30 years in prison on

the carjacking count, and lesser terms on the other offenses. The Michigan Court of Appeals

2:15-cv-10096-DML-MJH Doc # 8 Filed 04/29/15 Pg 1 of 8 Pg ID 49
affirmed the petitioner’s conviction, People v. Cain, 299 Mich. App. 27, 829 N.W.2d 37 (2012). 

On October 30, 2013, the Michigan Supreme Court vacated “that part of the Court of Appeals

opinion stating that a ‘completed larceny’ is an element of unlawfully driving away a motor vehicle

(UDAA),” affirmed the petitioner’s convictions for carjacking and unlawfully driving away, and

denied the petitioner’s application for leave to appeal in all other respects. People v. Cain, 495

Mich. 874, 838 N.W.2d 150 (2013). The Supreme Court denied the petitioner’s petition for a writ

of certiorari on April 21, 2014. Cain v. Michigan, 134 S. Ct. 1895 (2014).

The petitioner filed his petition on January 7, 2015, challenging his conviction on the

grounds that: (1) the prosecutor committed misconduct by improperly vouching for the complaining

witness’s credibility; (2) trial counsel was ineffective by failing to object to the prosecutor’s

improper comments; (3) the trial court’s improper comment that the petitioner “was one of the

perpetrators of the carjacking” deprived him of his due process right to a fair trial; (4) the

convictions for both carjacking and unlawfully driving away a motor vehicle violated the Double

Jeopardy Clause; (5) the petitioner’s arrest was not supported by probable cause, and all evidence

derived therefrom should be suppressed; (6) the use of a photographic array instead of a corporeal

lineup was improper and violated the petitioner’s right to due process; (7) the petitioner was denied

due process when he was not arraigned within 48 hours of his arrest; (8) the prosecutor improperly

withheld evidence favorable to the defense, contrary to the rule of Brady v. Maryland, 373 U.S. 83

(1963); (9) the complaint and warrant were facially insufficient to support the magistrate judge’s

determination that probable cause existed to bind the defendant over for trial; (10) the trial court

abused its discretion by denying the petitioner’s motion to suppress certain evidence and improper

identification testimony; (11) the convictions for being a felon in possession of a firearm and

-2-

2:15-cv-10096-DML-MJH Doc # 8 Filed 04/29/15 Pg 2 of 8 Pg ID 50
possession of a firearm during a felony violated double jeopardy; and (12) the trial court lacked

subject matter jurisdiction over the case because no information was filed. The petitioner asserts

that he exhausted his state court remedies on all of those claims except the alleged Brady violation,

which he contends was omitted from his application for leave to appeal in the Michigan Supreme

Court “because of [a] typing error.” Pet. at 14.

The petitioner now asks that the Court hold his petition in abeyance so that he can return to

state court to exhaust three new claims that were not presented during his direct appeal: (1) trial

counsel was ineffective by failing to move for suppression of the improper identification testimony

or for an evidentiary hearing to determine its admissibility; (2) trial counsel was ineffective by

failing to locate or interview a witness who would have provided testimony favorable to the defense;

and (3) trial counsel was ineffective by failing to object to certain improper comments made by the

prosecutor during his rebuttal argument at closing.

II.

The doctrine of exhaustion of state remedies requires state prisoners to “fairly present’ their

claims as federal constitutional issues in the state courts before raising those claims in a federal

habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A), (c); O’Sullivan v. Boerckel, 526 U.S. 838,

844 (1999); McMeans v. Brigano, 228 F.3d 674, 680-81 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155,

160 (6th Cir. 1994). The exhaustion requirement is satisfied if a prisoner invokes one complete

round of the state’s established appellate review process, including a petition for discretionary

review to a state supreme court. See O’Sullivan, 526 U.S. at 845, 847. A prisoner “‘fairly presents’

his claim to the state courts by citing a portion of the Constitution, federal decisions using

constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns.” 

-3-

2:15-cv-10096-DML-MJH Doc # 8 Filed 04/29/15 Pg 3 of 8 Pg ID 51
Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993); see also Prather v. Rees, 822 F.2d 1418, 1420

(6th Cir. 1987) (holding that “[o]rdinarily, the state courts must have had the opportunity to pass on

defendant’s claims of constitutional violations”). A Michigan petitioner must present each ground

to both Michigan appellate courts before seeking federal habeas corpus relief. Wagner v. Smith, 581

F.3d 410, 414 (6th Cir. 2009); Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002); see also

Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The petitioner bears the burden of showing

that his state court remedies have been exhausted. Rust, 17 F.3d at 160.

The Supreme Court has held that the filing of a federal habeas corpus petition does not

suspend the running of the one-year limitations period under 28 U.S.C. § 2244(d)(2). See Duncan

v. Walker, 533 U.S. 167, 181-82 (2001). However, the Supreme Court’s decision in Duncan does

not prevent district courts from “retain[ing] jurisdiction over a meritorious claim and stay[ing]

proceedings pending the complete exhaustion of state remedies,” or from “deeming the limitations

period tolled for [a habeas] petition as a matter of equity.” Id. at 182-83 (Stevens, J., concurring). 

The Supreme Court nonetheless has cautioned that a stay is “available only in limited

circumstances,” such as “when the district court determines there was good cause for the petitioner’s

failure to exhaust his claims first in state court,” the unexhausted claims are not “plainly meritless,”

and the petitioner is not “engage[d] in abusive litigation tactics or intentional delay.” Rhines v.

Weber, 544 U.S. 269, 277-78 (2005).

The Sixth Circuit has advised that it is preferable for a district court to dismiss the

unexhausted claims, retain jurisdiction over the exhausted claims, and stay proceedings pending

exhaustion where to do otherwise would jeopardize the timeliness of a subsequent petition. See

Griffin v. Rogers, 308 F.3d 647, 652 & 652 n.1 (6th Cir. 2002); see also Palmer v. Carlton, 276 F.3d

-4-

2:15-cv-10096-DML-MJH Doc # 8 Filed 04/29/15 Pg 4 of 8 Pg ID 52
777, 781 (6th Cir. 2002) (finding it “eminently reasonable” to dismiss unexhausted claims in a

habeas petition and stay proceedings on the remaining claims pending exhaustion of state court

remedies). The court of appeals recently reiterated this point:

 “[I]f the petitioner had good cause for his failure to exhaust, his unexhausted claims

are potentially meritorious, and there is no indication that the petitioner engaged in

intentionally dilatory litigation tactics . . . the district court should stay, rather than

dismiss, the mixed petition.” [Rhines v. Weber, 544 U.S.] at 278, 125 S. Ct. 1528. 

This is because “[i]n such circumstance, . . . the petitioner’s interest in obtaining

federal review of his claims outweighs the competing interests in finality and speedy

resolution of federal petitions.” Id.; see also Wagner, 581 F.3d at 419 (considering

a mixed habeas petition and “not[ing] that Petitioner’s claims, particularly the

unexhausted claims, are not ‘plainly meritless,’” so “assuming Petitioner can show

good cause for failing to present these claims to the state court in the first instance,

we see no reason why the district court should not grant a ‘stay and abeyance’ while

Petitioner exhausts in state court, should Petitioner opt against dismissing his

unexhausted claims.” (citation and footnotes omitted)).

Cunningham v. Hudson, 756 F.3d 477, 486 (6th Cir. 2014).

The Michigan Court Rules provide a process by which the petitioner may raise his

unexhausted claims. The petitioner may file a motion for relief from judgment under Subchapter

6.500 of the Michigan Court Rules, which allows the trial court to appoint counsel, seek a response

from the prosecutor, expand the record, permit oral argument, and conduct an evidentiary hearing

on the petitioner’s claim. The petitioner may appeal the trial court’s disposition of his motion for

relief from judgment to the Michigan Court of Appeals and the Michigan Supreme Court, and he

may thereafter file a petition for writ of certiorari in the United States Supreme Court. To obtain

relief in state court, he will have to show cause for failing to raise his unexhausted claims on direct

review and resulting prejudice or a significant possibility of innocence. See Mich. Ct. R.

6.508(D)(3). However, he would have to make a similar showing here if the Court concluded that

there was no state remedy to exhaust. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Hannah

-5-

2:15-cv-10096-DML-MJH Doc # 8 Filed 04/29/15 Pg 5 of 8 Pg ID 53
v. Conley, 49 F.3d 1193, 1195-96 & 1196 n.3 (6th Cir. 1995); Rust, 17 F.3d at 160.

The statute of limitations under 28 U.S.C. § 2244(d)(1) should give the petitioner cause for

concern. The Supreme Court denied the petitioner’s petition for a writ of certiorari on April 21,

2014. “AEDPA’s one-year limitations period generally begins to run on the date that the state court

judgment is deemed to have become final ‘by the conclusion of direct review or the expiration of

the time for seeking such review.’” Johnson v. Rapelje, 542 F. App’x 453, 454 (6th Cir. 2013)

(quoting 28 U.S.C. § 2244(d)(1)(A)). “The conclusion of ‘direct review’ occurs upon the denial of

certiorari in the United States Supreme Court or 90 days after a final judgment of the highest state

court, when the period for seeking a writ of certiorari in the United States Supreme Court elapses.” 

Ibid. (citing Wall v. Kholi, 562 U.S. 545, 131 S. Ct. 1278, 1282 (2011)). The petitioner filed the

present petition on January 7, 2015, and his motion indicates that he has not yet filed any motion for

relief from judgment as to his new unexhausted claims in the state trial court. Once the state trial

court resolves any prospective motion that he may file, the petitioner has 21 days from the date of

the state trial court’s decision to appeal the trial court’s ruling. Mich. Ct. R. 6.509(A), 7.205(A)(1). 

If the Court does not toll the limitations period during the pendency of the state court proceedings,

then the applicable one-year limitations period likely will have expired and any subsequent habeas

petition filed by him would be untimely, by the time that the state courts resolve any appeal from

the trial court’s denial of his second motion for relief from judgment. The respondent has not

opposed the petitioner’s request for a stay of proceedings.

The Court, therefore, will grant the petitioner’s request to hold the petition in abeyance while

he returns to the state courts to exhaust his additional claims. The petitioner alleges that the twelve

claims raised in the original petition have been exhausted, but the new claims that he describes in

-6-

2:15-cv-10096-DML-MJH Doc # 8 Filed 04/29/15 Pg 6 of 8 Pg ID 54
his motion to stay have not. The petitioner’s claims do not appear to be “plainly meritless,” Wagner

v. Smith, 581 F. 3d 410, 419 (6th Cir. 2009), and he may assert that he did not previously raise these

claims in the state courts due to the alleged ineffective assistance of his trial and appellate counsel. 

Id., at 419, n.4 & 5. It does not appear that the petitioner has engaged in “intentionally dilatory

tactics.”

However, even where a district court determines that a stay is appropriate pending

exhaustion of state court remedies, the district court “should place reasonable time limits on a

petitioner’s trip to state court and back.” Rhines, 544 U.S. at 278. Therefore, to ensure that there are

no delays by the petitioner in exhausting his state court remedies, this Court will impose upon the

petitioner time limits within which he must proceed with his state court post-conviction proceedings.

See Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002). The petitioner must ask this Court to lift

the stay within twenty-eight days of exhausting his state court remedies.

III.

Accordingly, it is ORDERED that the petitioner’s motion to hold the petition in abeyance

[dkt. #7] is GRANTED.

It is further ORDERED that the petitioner must file an amended petition in this Court within

twenty-eight (28) days after the conclusion of the state court proceedings. If the petitioner files an

amended petition, the respondent shall file an answer addressing the allegations in the petition in

accordance with Rule 5 of the Rules Governing Section 2254 Cases in the United States District

Courts within fifty-six (56) days thereafter. If the petitioner returns to federal court with an

amended petition, following exhaustion of his state court remedies, he must use the same caption

and case number as appears on this order.

-7-

2:15-cv-10096-DML-MJH Doc # 8 Filed 04/29/15 Pg 7 of 8 Pg ID 55
It is further ORDERED that to avoid administrative difficulties the Clerk of Court shall

CLOSE this case for statistical purposes only. Nothing in this order or in the related docket entry

shall be considered a dismissal or adjudication of this matter. 

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/David M. Lawson

DAVID M. LAWSON

United States District Judge

Dated: April 29, 2015

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on April 29, 2015.

s/Susan Pinkowski 

SUSAN PINKOWSKI

-8-

2:15-cv-10096-DML-MJH Doc # 8 Filed 04/29/15 Pg 8 of 8 Pg ID 56