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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MELVIN MATSEY, #236265, 

Petitioner, Case No. 14-cv-14082 

Hon. Matthew F. Leitman 

v. 

LINDA TRIBLEY, 

Respondent. 

____________________________________/

ORDER STAYING PROCEEDINGS 

AND ADMINISTRATIVELY CLOSING CASE

I. Introduction 

This is a habeas case under 28 U.S.C. ' 2254. Michigan prisoner Melvin 

Matsey (APetitioner@) was convicted of four counts of breaking and entering a 

building with intent to commit a larceny, Mich. Comp. Laws ' 750.110, following a 

jury trial in the Oakland County Circuit Court and was sentenced, as a fourth habitual 

offender, Mich. Comp. Laws ' 769.12, to concurrent terms of 5 to 40 years 

imprisonment in 2012. Petitioner=s pending habeas petition contains claims 

concerning the effectiveness of appellate counsel, the admission of other acts 

evidence, the consolidation of the cases, and the sufficiency of the evidence. 

Respondent has filed an answer to the petition asserting that the first and fourth 
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claims are unexhausted and that all of the claims lack merit. Petitioner has filed a 

reply to that answer. 

Having reviewed the matter, the Court finds that Petitioner has not properly 

exhausted his first and fourth habeas claims in the state courts and that he must do 

so before pursuing those claims on federal habeas review. Accordingly, the Court 

shall stay the proceedings to allow Petitioner to return to the state courts to fully 

exhaust all of his habeas claims. 

II. Discussion 

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) (Astate 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@); 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. Koontz v. Glossa, 731 F.2d 365, 368 

(6th Cir. 1984). A Michigan prisoner must present each issue to the Michigan Court 
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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). While the exhaustion requirement is not 

jurisdictional, a Astrong 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. Rust, 17 F.3d at 160. 

In this case, the record reflects that Petitioner has not exhausted his claims 

concerning the effectiveness of appellate counsel and the sufficiency of the evidence 

in the state courts. While Petitioner raised those claims before the Michigan 

Supreme Court on direct appeal of his convictions, he did not present them to the 

Michigan Court of Appeals. The presentation of those claims to the Michigan 

Supreme Court on discretionary review without first presenting them to the 

Michigan Court of Appeals does not satisfy the exhaustion requirement. See

Castille v. Peoples, 489 U.S. 346, 349 (1989). Petitioner has thus failed to properly 

exhaust all of his claims in the state courts before proceeding on federal habeas 

review. 

A federal district 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. Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay 
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and abeyance is available only in Alimited circumstances@ such as when the one-year 

statute of limitations poses a concern, and when the petitioner demonstrates Agood 

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

the petitioner has not engaged in intentionally dilatory litigation tactics, and the 

unexhausted claims are not Aplainly meritless.@ Id. at 277. 

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 prejudice, 

while Petitioner pursues the two unexhausted claims in the state courts. Second, 

while Petitioner does not allege cause for his failure to properly exhaust his claims 

in the state courts, he may be able to do so on collateral review if given the 

opportunity. Third, the unexhausted claims do 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 B 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 case, is unwarranted. 

III. Conclusion

Accordingly, for the reasons stated, the Court STAYS the proceedings and 

holds the habeas petition in abeyance pending Petitioner=s exhaustion of state court 

remedies as to his two unexhausted claims. The stay is conditioned on Petitioner 
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presenting the unexhausted claims to the state courts within 60 days of the filing 

date of this order by filing a motion for relief from judgment with the Oakland 

County Circuit Court and then pursuing the claims in the Michigan appellate courts 

as necessary. 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 habeas petition, using the same caption and case 

number, within 60 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)). Failure to comply with these conditions, may result 

in dismissal of the case. Additionally, this case is CLOSED for administrative 

purposes pending compliance with these conditions. 

Lastly, should Petitioner wishes to forego the two unexhausted claims and to 

proceed only on the two exhausted claims, he may move to reopen this case to 

proceed on an amended petition containing only the two exhausted claims within 30 

days of the filing date of this order. 

IT IS SO ORDERED. 

 s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: April 13, 2017 
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I hereby certify that a copy of the foregoing document was served upon the parties 

and/or counsel of record on April 13, 2017, by electronic means and/or ordinary 

mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113