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UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

JAMES GUNN, #731468, 

Petitioner, 

Case No. 15-cv-10663 

v. Honorable Matthew F. Leitman 

LORI GIDLEY, 

Respondent. 

________________________________/ 

ORDER DENYING PETITIONER=S MOTION TO STAY (ECF #3), 

DISMISSING WITHOUT PREJUDICE THE PETITION FOR A WRIT OF 

HABEAS CORPUS (ECF #1), DENYING A CERTIFICATE OF 

APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA 

PAUPERIS ON APPEAL

I. Introduction

Michigan prisoner James Gunn (APetitioner@), acting pro se, has filed a 

petition for a writ of habeas corpus pursuant to 28 U.S.C. ' 2254. (See the 

“Petition,” ECF #1.) Following a jury trial in Saginaw County Circuit Court, 

Petitioner was convicted of first-degree criminal sexual conduct and sentenced to a 

term of imprisonment of up to 30 years. Petitioner now raises claims regarding the 

use of shackles at trial, the effectiveness of trial counsel (as to fingerprint evidence 

and the scoring of offense variables), a limitation on cross-examination of the 

victim, the scoring of two offense variables, and the assessment of a crime victims=

rights fee. 

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The matter is before the Court on initial screening and Petitioner=s motion to 

stay the proceedings (the “Motion to Stay,” ECF #3). Petitioner seeks to stay the 

action because he is pursuing collateral review in the state courts on additional 

claims regarding the effectiveness of trial and appellate counsel (the “Unexhausted 

Claims”). (See id.) For the reasons discussed below, the Court DENIES the 

Motion to Stay and DISMISSES the Petition without prejudice. The Court also 

DENIES a certificate of appealability and DENIES leave to proceed in forma 

pauperis on appeal. 

II. Analysis

A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. ' 2254 

must first exhaust all state remedies. 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). A 

Michigan prisoner must raise each issue he or she seeks to present in a federal 

habeas proceeding to the state courts for review. 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 v. Brigano, 228 

F.3d 674, 681 (6th Cir. 2000); see also Williams v. Anderson, 460 F.3d 789, 806 (6th 

Cir. 2006) (citing McMeans). The claims must also be raised in the state courts as 

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federal constitutional issues. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). 

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 habeas petitioner to prove exhaustion. Rust, 17 

F.3d at 160. 

In this case, Petitioner indicates that he has not exhausted all of his potential 

habeas claims in the state courts. He states that he filed a motion for relief from 

judgment with the state trial court concerning the Unexhausted Claims, that the 

motion was denied, and that he intends to appeal the trial court=s decision in the state 

appellate courts. Petitioner must complete the state court process before seeking 

habeas review of the Unexhausted Claims. See O’Sullivan, 526 U.S. at 845; Rust, 

17 F.3d at 160. 

Even though Petitioner=s pending motion in state court does not involve the 

exhausted claims now pending in this Court, the resolution of his state court motion 

may result in the reversal of his conviction on another ground, thereby mooting the 

exhausted claims now pending here. See Humphrey v. Scutt, No. 08-CV-14605, 

2008 WL 4858091, *1 (E.D. Mich. Nov. 5, 2008) (citing Sherwood v. Tomkins, 716 

F.2d 632, 634 (9th Cir.1983), and Woods v. Gilmore, 26 F. Supp. 2d 1093, 1095 

(C.D. Ill. 1998)); Szymanski v. Martin, 99-CV-76196-DT, 2000 WL 654916 (E.D. 

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Mich. April 13, 2000). Under these circumstances, dismissal of the Petition 

without prejudice, rather than a stay of the proceedings, is warranted. See 

Sherwood, 716 F.2d at 634; Payne v. MacLaren, No. 14-11427, 2014 WL 668774, at 

*3 (E.D. Mich. Nov. 26, 2014); Davis v. Warren, No. 13-15215, 2014 WL 186097, 

at *2 (E.D. Mich. Jan. 16, 2014); Glenn v. Rapelje, No. 11-12759, 2011 WL 

5039881, at *2 (E.D. Mich. Oct. 24, 2011); Humphrey, 2008 WL 4858091 at *1. 

A stay is not necessary in this case because the one-year statute of limitations 

applicable to federal habeas actions, 28 U.S.C. ' 2241(d), is not likely to affect 

Petitioner’s ability to assert his claims in this Court. The Michigan Supreme Court 

denied Petitioner leave to appeal on direct appeal on May 27, 2014. People v. 

Gunn, 495 Mich. 1004, 846 N.W.2d 389 (May 27, 2014). Petitioner=s conviction 

became final 90 days later, on or about August 25, 2014. See Jimenez v. 

Quarterman, 555 U.S. 113, 120 (2009) (a conviction becomes final when Athe time 

for filing a certiorari petition expires@); Lawrence v. Florida, 549 U.S. 327, 333 

(2007). Petitioner then had one year to file his federal habeas petition or seek 

additional state court review. 28 U.S.C. ' 2244(d)(2). But Petitioner tolled the 

limitations period by properly filing his state court motion for relief from judgment 

on October 22, 2014. The one-year period will continue to be tolled until Petitioner 

completes his post-conviction appeals in the Michigan Court of Appeals and the 

Michigan Supreme Court. See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 

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214, 220-21 (2002); Matthews v. Abramajtys, 319 F.3d 780, 787-88 (6th Cir. 2003). 

At the time that Petitioner tolled the limitations period by filing his state court 

motion (on October 22, 2014), only 58 days of the limitations period had passed. 

Accordingly, 307 more days remain available. Petitioner has sufficient time B

about 10 months B to file a new petition containing all of his habeas claims upon the 

completion of the state court proceedings. Under these circumstances, a stay of this 

action is not appropriate. See, e.g., Schroeder v. Renico, 156 F.Supp.2d 838, 

845-46 (E.D. Mich. 2011); Payne, 2014 WL 6686774 at *4; Montanez v. Rapelje, 

No. 13-14763, 2014 WL 700505, at *2-3 (E.D. Mich. Feb. 24, 2014); Glenn, 2011 

WL 5039881 at *3; Humphrey, 2008 WL 4858091 at *2. 

III. Conclusion

For all the reasons discussed in this Order, the Court DENIES Petitioner=s 

Motion to Stay (ECF #3) and DISMISSES the Petition (ECF #1) WITHOUT 

PREJUDICE. The Court makes no determination as to the merits of Petitioner=s 

claims. 

Before Petitioner may appeal the Court=s decision, a certificate of 

appealability must issue. 28 U.S.C. ' 2253(c)(1)(a); Fed. R. App. P. 22(b). A 

certificate of appealability may issue Aonly if the applicant has made a substantial 

showing of the denial of a constitutional right.@ 28 U.S.C. ' 2253(c)(2). When a 

district court denies relief on procedural grounds without addressing the merits, a 

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certificate of appealability should issue if it is shown that jurists of reason would find 

it debatable whether the petitioner states a valid claim of the denial of a 

constitutional right, and that jurists of reason would find it debatable whether the 

court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 

(2000). Reasonable jurists could not debate the correctness of the Court=s 

procedural ruling. Accordingly, the Court DENIES a certificate of appealability. 

The Court also DENIES leave to proceed in forma pauperis on appeal as an appeal 

would be frivolous. Fed. R. App. P. 24(a). This case is closed. 

IT IS SO ORDERED. 

 s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: March 9, 2015 

 I hereby certify that a copy of the foregoing document was served upon the 

parties and/or counsel of record on March 9, 2015, by electronic means and/or 

ordinary mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113

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