UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JEFFERY PAYNE, #193531,

Petitioner,

v. CASE NO. 14-CV-14903

HONORABLE GEORGE CARAM STEEH

THOMAS WINN,

Respondent.

___________________________/

ORDER DENYING MOTION TO STAY PROCEEDINGS

AND HOLD HABEAS PETITION IN ABEYANCE

I.

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner

Jeffrey Payne (“petitioner”) asserts that he is being held in violation of his constitutional

rights. The petitioner was convicted of armed robbery, MICH. COMP. LAWS § 750.529, and

possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b,

following a bench trial in the Wayne County Circuit Court. He was sentenced to

consecutive terms of 15 to 30 years imprisonment and two years imprisonment in 2011. 

In his current petition, he raises claims concerning the great weight of the evidence and the

denial of a new trial motion. The respondent has not yet filed an answer to the petition, but

that answer is due on August 25, 2015. The matter is before the Court on the petitioner’s

motion to stay the proceedings and hold his habeas petition in abeyance so that he may

return to the state courts and exhaust additional issues concerning prosecutorial

misconduct and the effectiveness of trial and appellate counsel. For the reasons that

follow, the Court denies the petitioner’s motion.

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II.

The petitioner’s convictions arise from his armed robbery of another man in Wayne

County, Michigan on June 26, 2011. Following sentencing, the petitioner filed an appeal

of right with the Michigan Court of Appeals raising the claims contained in his current

petition. The Michigan Court of Appeals affirmed his convictions and sentences. People

v. Payne, No. 308357, 2013 WL 2420987 (Mich. Ct. App. June 4, 2013) (unpublished). 

The petitioner filed an application for leave to appeal with the Michigan Supreme Court,

which was denied. People v. Payne, 495 Mich. 913, 840 N.W.2d 342 (Dec. 23, 2013). The

petitioner dated his federal habeas petition on December 19, 2014. He dated the instant

motion on August 6, 2015.

III.

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)

(“state 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 this

requirement, the claims must be “fairly presented” to the state courts, meaning that the

prisoner 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

presented to the state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d

365, 368 (6th Cir. 1984). A Michigan prisoner must properly present each issue he seeks

to raise in a federal habeas proceeding to both the Michigan Court of Appeals and the

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Michigan Supreme Court to satisfy the exhaustion requirement. Welch v. Burke, 49 F.

Supp. 2d 992, 998 (E.D. Mich. 1999); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th

Cir. 1990). While the exhaustion requirement is not jurisdictional, a “strong 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.

A federal district court has discretion to stay a mixed habeas petition, containing both

exhausted and unexhausted claims, 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 and abeyance is available only in "limited circumstances"

such as when the one-year statute of limitations poses a concern, and when the petitioner

demonstrates "good 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 "plainly meritless." Id. at 277.

The petitioner has not shown the need for a stay. His current habeas claims are

exhausted and he has not shown that the one-year statute of limitations applicable to

federal habeas actions, see 28 U.S.C. § 2244(d), will preclude review. The one-year

limitations period does not begin to run until 90 days after the conclusion of direct appeal,

see Jimenez v. Quarterman, 555 U.S. 113, 120 (2009) (stating that a conviction becomes

final when “the time for filing a certiorari petition expires”); Lawrence v. Florida, 549 U.S.

327, 333 (2007). The Michigan Supreme Court denied leave to appeal on December 23,

2013 and the time for seeking a writ of certiorari with the United States Supreme Court

expired on March 22, 2014. The petitioner dated his federal habeas petition on December

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19, 2014. Thus, just under nine months of the one-year period had expired when the

petitioner instituted this action. While the time in which this case has been pending in

federal court is not statutorily tolled, see Duncan v. Walker, 533 U.S. 167, 181-82 (2001)

(a federal habeas petition is not an “application for State post-conviction or other collateral

review” within the meaning of 28 U.S.C. § 2244(d)(2) so as to statutorily toll the limitations

period), such time is equitably tolled. See, e.g., Johnson v. Warren, 344 F. Supp. 2d 1081,

1088-89 (E.D. Mich. 2004). The limitations period will also be tolled during the time in

which any properly filed post-conviction or collateral actions are pending in the state courts. 

See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-221 (2002). Given that

three months of the one-year period remains, the petitioner has sufficient time to exhaust

additional issues in the state courts and return to federal court should he wish to do so.

Additionally, while there is no evidence of intentional delay, the petitioner has not

shown good cause for failing to fully and properly exhaust his additional issues in the state

courts before seeking federal habeas relief. The fact that appellate counsel did not raise

the issues on direct appeal, while perhaps establishing cause for that procedural default,

does not excuse the petitioner’s failure to exhaust all of his issues on state collateral review

before proceeding in federal court. The lack of a legal education, ignorance of the law,

and/or the lack of legal assistance do not constitute good cause for the failure to exhaust

state remedies. See Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004); Kint v. Burt, No.

2:05-CV-74822-DT, 2007 WL 763174, *2 n.1 (E.D. Mich. March 9, 2007).

Lastly, the petitioner states that he seeks to exhaust additional claims concerning

prosecutorial misconduct and the effectiveness of trial and appellate counsel, but he does

not provide much detail about those claims. While such claims generally concern matters

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of federal law, the Court cannot determine whether they are plainly meritless based upon

the petitioner’s pleadings. Given such circumstances, a stay is unwarranted.

IV.

Accordingly, the Court DENIES the petitioner’s motion to stay the proceedings and

hold his habeas petition in abeyance. Should the petitioner wish to have the Court dismiss

the present petition, which contains exhausted claims, so that he may pursue additional

issues in the state courts, he may move for a non-prejudicial dismissal of his habeas

petition within 30 days of the filing date of this order. If he does not do so, the Court shall

proceed on the claims contained in the pending petition.

IT IS SO ORDERED.

Dated: August 20, 2015

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

August 20, 2015, by electronic and/or ordinary mail and also

on Jeffery Payne #193531, Saginaw Correctional Facility,

9625 Pierce Road, Freeland, MI 48623.

s/Barbara Radke

Deputy Clerk

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