UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

SCOTT BORKOWSKI, 

 Petitioner, 

 Case No. 15-cv-10150 

v. 

 HON. MARK A. GOLDSMITH 

JEFFREY WOODS, 

 Respondent. 

_______________________________/

OPINION AND ORDER 

(1) GRANTING IN PART RESPONDENT=S MOTION TO DISMISS (Dkt. 15); (2) 

STAYING PROCEEDINGS; AND (3) ADMINISTRATIVELY CLOSING CASE 

I. INTRODUCTION 

This is a habeas case brought pursuant to 28 U.S.C. ' 2254. Petitioner Scott Borkowski 

was convicted of operating a motor vehicle under the influence causing death, Mich. Comp. Laws 

' 257.625(4), operating while license suspended causing death, Mich. Comp. Laws ' 257.904(4), 

and homicide-manslaughter with a motor vehicle, Mich. Comp. Laws ' 750.321, pursuant to a plea 

in the Monroe County Circuit Court. Petitioner was sentenced to concurrent terms of 10-to-15 

years’ imprisonment on those convictions in 2011. In the petition, he raises claims of illusory 

plea, inadequate notice of the charges, improper upward sentencing departure, double jeopardy, 

invalid jurisdiction/warrant, lack of arraignment, violation of state court rules, denial of discovery, 

and ineffective assistance of appellate counsel.

This matter is before the Court on Respondent=s motion to dismiss the petition on 

exhaustion grounds (Dkt. 15). 

II. ANALYSIS 

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In the motion to dismiss, Respondent asserts that all Petitioner=s claims, other than his 

illusory plea claim, have not been presented to the state courts. The doctrine of exhaustion of 

state remedies requires state prisoners to Afairly present@ their claims as federal constitutional 

issues in the state courts before raising those claims in a federal habeas petition. 28 U.S.C. ''

2254(b)(1)(A), (C); O=Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); McMeans v. Brigano, 228 

F.3d 674, 681 (6th Cir. 2000). Federal law provides that a habeas petitioner is only entitled to 

relief if he can show that the state-court adjudication of his claims resulted in a decision that was 

contrary to, or involved an unreasonable application of, clearly established federal law, as 

determined by the Supreme Court of the United States. 28 U.S.C. ' 2254(d). The state courts 

must be given an opportunity to rule upon all of Petitioner=s claims before he can present those 

claims on habeas review. Otherwise, this Court is unable to apply the standard found at 28 U.S.C. 

' 2254. 

The exhaustion requirement is satisfied if a prisoner invokes one complete round of the 

state=s established appellate review process. O'Sullivan, 526 U.S. at 845. To satisfy the 

exhaustion requirement, the claims must be Afairly 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, 228 F.3d at 681; see also Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). 

The claims must also be presented to the state courts as federal constitutional issues. Koontz v. 

Glossa, 731 F.2d 365, 368 (6th Cir. 1984). For a Michigan prisoner, each issue must be presented 

to both the Michigan Court of Appeals and the Michigan Supreme Court to satisfy the exhaustion 

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

2d 992, 998 (E.D. Mich. 1999). The burden is on the petitioner to prove exhaustion. Rust, 17 

F.3d at 160. 

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The Michigan Rules of Court provide a process through which Petitioner may raise his 

unexhausted claims. Petitioner may file a motion for relief from judgment in the state trial court, 

pursuant to Michigan Court Rule 6.500 et seq., and then appeal the trial court=s decision to the state 

appellate courts, as necessary. Petitioner=s unexhausted claims should first be addressed to, and 

considered by, the Michigan courts. 

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 federal court 

on a perfected petition. Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is 

available only in Alimited circumstances@ such as when the one-year statute of limitations 

applicable to federal habeas actions poses a concern, and when the petitioner demonstrates Agood 

cause@ for the failure to exhaust state court remedies before proceeding in federal court, the 

unexhausted claims are not Aplainly meritless,@ and the petitioner has not engaged in intentionally 

dilatory tactics. Id. at 277. 

In this case, Petitioner has established the need for a stay. He wishes to pursue several 

claims which have not been presented to the state courts. The one-year limitations period 

applicable to federal habeas actions, 28 U.S.C. ' 2244(d)(1), may pose a problem if the Court were 

to dismiss the petition to allow for further exhaustion of state remedies, as Petitioner appears to 

have filed his initial pleadings in federal court with only days remaining before the expiration of 

the one-year period, and submitted his actual habeas petition three months later in response to the 

Court=s deficiency order. Additionally, Petitioner alleges that appellate counsel was ineffective 

for failing to previously present his unexhausted issues to the state courts, which may provide good 

cause for his failure to raise the claims on direct appeal. Lastly, the Court finds that at least some 

of the unexhausted claims do not appear to be plainly meritless and there is no evidence of 

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intentional delay. Therefore, the Court shall hold the petition in abeyance and stay the 

proceedings pending Petitioner=s exhaustion of state court remedies as to the additional, 

unexhausted claims. 

III. CONCLUSION 

For the reasons stated above, the Court grants Respondent=s motion to dismiss on 

exhaustion grounds (Dkt. 15) in part, and holds the habeas petition in abeyance; these proceedings 

are stayed. The stay is conditioned on Petitioner presenting the unexhausted claims to the state 

courts within 30 days of the filing date of this order by filing a motion for relief from judgment 

with the 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, within 30 days of fully 

exhausting state remedies. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002) (adopting 

approach taken in Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001)). Should Petitioner fail to 

comply with these conditions, the case may be dismissed. Lastly, this case is closed for 

administrative purposes pending compliance with these conditions. 

SO ORDERED. 

Dated: December 17, 2015 s/Mark A. Goldsmith 

 Detroit, Michigan MARK A. GOLDSMITH 

 United States District Judge 

 

 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any 

unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail 

addresses disclosed on the Notice of Electronic Filing on December 17, 2015. 

 s/Karri Sandusky 

 Case Manager 

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