UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

DARWIN MOORE, # 534358, 

 Petitioner, Case No. 14-cv-13969 

v. Honorable Thomas L. Ludington 

LORI GIDLEY, 

 Respondent. 

__________________________________________/ 

OPINION AND ORDER DENYING THE MOTION TO HOLD HABEAS PETITION IN 

ABEYANCE, SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS 

CORPUS, AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR 

LEAVE TO APPEAL IN FORMA PAUPERIS

 Petitioner, Darwin Moore, confined at the Oaks Correctional Facility in Manistee, 

Michigan, filed a pro se application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 

Moore was convicted following a jury trial in the Wayne County Circuit Court of six counts of 

first-degree criminal sexual conduct, Mich. Comp Laws § 750.520b; and one count of seconddegree criminal sexual conduct, Mich. Comp Laws § 750.520c. Petitioner was sentenced as a 

fourth felony habitual offender to forty seven years, six months to eighty five years on each 

count. Petitioner claims that he was denied due process when he was tried on a criminal charge 

that was added during trial, that he was denied a fair trial because of prosecutorial misconduct, 

that trial counsel was ineffective, and that he was erroneously sentenced under the sentencing 

guidelines of 2011 and the Truth in Sentencing Act when the charges that he was convicted of 

occurred prior to the enactment of the guidelines and the act. Petitioner has also filed a motion to 

hold the petition in abeyance while he exhausts his sentencing claim following his re-sentencing 

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in the state courts. For the reasons that follow, the motion to hold the petition in abeyance will be 

denied and the petition for writ of habeas corpus will be denied without prejudice. 

I. 

 Petitioner was convicted of the above charges by a jury in the Wayne County Circuit 

Court. The Michigan Court of Appeals affirmed the petitioner’s conviction but remanded the 

case to the Wayne County Circuit Court for re-sentencing. People v. Moore, No. 309651, 2013 

WL 2459867 (Mich. Ct. App. June 6, 2013). 

 Petitioner filed an application for leave to appeal to the Michigan Supreme Court. In lieu 

of granting leave to appeal, the Michigan Supreme Court reversed the judgment of the Court of 

Appeals in part and vacated the petitioner’s conviction of first-degree criminal sexual conduct 

arising from Count 5 of the amended information, remanding the case to the Wayne Circuit 

Court for amendment of the judgment of sentence. The Michigan Supreme Court denied 

Petitioner leave to appeal with respect to his remaining claims. People v. Moore, 495 Mich. 898, 

839 NW2d 475 (2013). 

 Petitioner claims that he was re-sentenced by the trial court following remand by the 

Michigan Court of Appeals. Petitioner indicates that he has filed a second appeal to the Michigan 

Court of Appeals based on the re-sentencing which remains pending in that court. 

 Petitioner seeks a writ of habeas corpus on the following grounds: 

I. Defendant was denied due process when he was tried in circuit court on 

charges that were added during the course of trial. 

II. The prosecutor’s misconduct denied defendant a fair trial. 

III. Trial counsel’s ineffectiveness in failing to object to the trial court’s 

misreading of the information and to the prosecutor’s misconduct denied 

defendant a fair trial. 

IV. The defendant was erroneously sentenced under the Sentencing Guidelines 

of 2011 and Truth in Sentencing (TIS) when, in fact, the charges he was found 

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guilty of were committed pre-TIS, thus violating Mr. Moore’s constitutional right 

to be sentenced under accurate information. 

 Petitioner claims that he is appealing his fourth claim following his re-sentencing. In his 

motion to hold the petition in abeyance, the petitioner asks that the Court stay the proceedings 

and hold the petition in abeyance while his appeal from the denial of his re-sentencing remains 

pending in the state courts and also so that he can subsequently file a motion for post-conviction 

relief in the state courts at the conclusion of his re-sentencing appeal. 

II. 

 The petition for writ of habeas corpus must be dismissed, because the petitioner has 

failed to exhaust his state court remedies with respect to all of his claims. Petitioner’s fourth 

claim remains pending in the state appellate courts following his re-sentencing in the trial court. 

 As a general rule, a state prisoner seeking federal habeas relief must first exhaust his or 

her available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) & 

(c); Picard v. Connor, 404 U. S. 270, 275-78 (1971); Hannah v. Conley, 49 F. 3d 1193, 1195 

(6th Cir. 1995). A petition for a writ of habeas corpus filed by a state prisoner shall not be 

granted unless the petitioner has exhausted his available state court remedies, there is an absence 

of available state corrective process, or circumstances exist that render such process ineffective 

to protect the petitioner’s rights. See Turner v. Bagley, 401 F. 3d 718, 724 (6th Cir. 2005). A 

prisoner confined pursuant to a Michigan conviction must raise each habeas issue in both the 

Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal habeas 

corpus relief. Hafley v. Sowders, 902 F. 2d 480, 483 (6th Cir. 1990). The Antiterrorism and 

Effective Death Penalty Act (AEDPA) preserves the traditional exhaustion requirement, which 

mandates dismissal of a habeas petition containing claims that a petitioner has a right to raise in 

the state courts but has failed to do so. Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 

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1999). The exhaustion requirement applies to any claims which may arise from a re-sentencing. 

See, e.g., Prendergast v. Clements, 699 F. 3d 1182, 1184-85 (10th Cir. 2012). The failure to 

exhaust state court remedies may be raised sua sponte by a federal court. See Benoit v. Bock, 

237 F. Supp. 2d 804, 806 (E.D. Mich. 2003); 28 U.S.C. § 2254(b)(3). 

 Petitioner claims that he has an appeal from his re-sentencing that remains pending in the 

Michigan Court of Appeals concerning the convictions challenged in this petition. The general 

rule is that a habeas petition should be denied on exhaustion grounds where the petitioner’s 

appeal remains pending in the state appellate courts. See, e.g., Juliano v. Cardwell, 432 F. 2d 

1051, 1051 (6th Cir. 1970); see also Puertas v. Overton, 272 F. Supp. 2d 621, 627 (E.D. Mich. 

2003). 

 Petitioner has failed to exhaust his state court remedies with respect to all of his claims 

and still has an available state court remedy with which to do so. Although a district court has the 

discretion to stay a mixed habeas petition containing both exhausted and unexhausted claims to 

allow the petitioner to present his unexhausted claims to the state court in the first instance, see 

Rhines v. Weber, 544 U.S. 269 (2005), in this case, a stay of Petitioner’s application for a writ of 

habeas corpus would be unnecessary, because the present habeas petition was filed with this 

Court before Petitioner’s conviction became final with the state courts pursuant to 28 U.S.C. § 

2244(d)(1)(A). Although the Michigan appellate courts affirmed Petitioner’s conviction, the 

Michigan Court of Appeals remanded the case to the Wayne County Circuit Court for resentencing. Petitioner was re-sentenced by the trial court and now has an appeal from that resentencing pending in the Michigan Court of Appeals. Where state appellate courts affirm a 

habeas petitioner’s conviction but reverse his sentence, the judgment against the petitioner 

becomes final, for commencing the one-year period for filing a habeas petition, when direct 

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review of the new sentence is completed. See Rashad v. Lafler, 675 F. 3d 564, 567-69 (6th Cir. 

2012). Because Petitioner’s appeal from his re-sentencing is still pending, the one year 

limitations period has yet to commence. Because the one year limitations period has yet to begin 

running in this case, Petitioner would not be prejudiced if his habeas petition was dismissed 

without prejudice during the pendency of his state court appeal. Thus, a stay of the proceedings 

is not necessary or appropriate to preserve the federal forum for Petitioner’s claims. See 

Schroeder v. Renico, 156 F. Supp. 2d 838, 845-46 (E.D. Mich. 2001); see also Ross v. Bunting, 

1:13–CV–1420; 2014 WL 3053304, at *5, *8-9 (N.D. Ohio July 7, 2014) (declining to hold 

petition in abeyance in lieu of dismissal when the petitioner’s re-sentencing remained pending in 

the state trial court). 

III. 

 The petition for writ of habeas corpus will be dismissed without prejudice and a 

certificate of appealability will be denied. A habeas petitioner must receive a certificate of 

appealability (“COA”) in order to appeal the denial of a habeas petition for relief from either a 

state or federal conviction. 28 U.S.C. §§ 2253(c)(1)(A), (B). A court may issue a COA “only if 

the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 

2253(c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists 

could debate whether the petition should have been resolved in a different manner, or that the 

issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 

529 U.S. 473, 483-84 (2000). When a district court denies a habeas petition on procedural 

grounds without reaching the prisoner’s underlying constitutional claims, a certificate of 

appealability should issue, and an appeal of the district court’s order may be taken, if the 

petitioner shows that jurists of reason would find it debatable whether the petitioner states a valid 

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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. Id. When a plain procedural bar is 

present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 

could not conclude either that the district court erred in dismissing the petition or that the petition 

should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Id. 

 A certificate of appealability will not issue, because “jurists of reason” would not find it 

debatable whether this Court was correct in its procedural ruling that the petitioner had failed to 

exhaust an available state court remedy with respect to his claims. See Colbert v. Tambi, 

513 F. Supp. 2d 927, 939 (S.D. Ohio 2007). The petitioner will also not be granted leave to 

appeal in forma pauperis because the appeal would be frivolous. Allen v. Stovall, 

156 F. Supp. 2d 791, 798 (E.D. Mich. 2001). 

IV. 

 Accordingly, it is ORDERED that the petition for writ of habeas corpus, ECF No. 1, is 

DISMISSED without prejudice. 

 It is further ORDERED that the motion to hold the petition in abeyance, ECF No. 3, is 

DENIED. 

 It is further ORDERED that a certificate of appealability is DENIED. 

 It is further ORDERED that leave to proceed in forma pauperis on appeal is DENIED. 

Dated: November 21, 2014 s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

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PROOF OF SERVICE 

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

upon Darwin Moore #534358 at Michigan Reformatory, 1342 West 

Main Street, Ionia, MI 48846 by first class U.S. mail on November 21, 

2014. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS 

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