UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

DANIEL F. JONES, 

 Petitioner, Case No. 15-cv-10692 

v Honorable Thomas L. Ludington 

DUNCAN MACLAREN, 

 Respondent. 

__________________________________________/ 

OPINION AND ORDER GRANTING MOTION, HOLDING IN ABEYANCE PETITION 

FOR WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE 

Petitioner Daniel F. Jones, presently confined at the Kinross Correctional Facility in 

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

§ 2254. Petitioner was convicted by a jury in the Wayne County Circuit Court of first-degree 

felony murder and felony firearm.1 The petitioner has also filed a motion to hold the petition in 

abeyance to permit him to complete post-conviction proceedings in the state courts, where he is 

attempting to exhaust the claims that he wishes to raise in his current habeas application. For the 

reasons stated below, the Court will hold the petition in abeyance and will stay the proceedings 

under the terms outlined below in the opinion to permit the petitioner to return to the state courts 

to exhaust his additional claims, failing which the petition shall be dismissed without prejudice. 

The Court will also administratively close the case. 

I. 

Petitioner was sixteen years old at the time of the offenses. Although Petitioner was a 

juvenile when he committed the offenses, he was charged as an adult. Petitioner was convicted 

of the above offenses following a jury trial in the Wayne County Circuit Court. Petitioner’s 

 

1

 Petitioner was also originally convicted of second-degree murder, armed robbery, and assault with intent to rob 

while armed but these convictions were vacated on Double Jeopardy grounds. 

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conviction was affirmed on appeal. People v. Jones, 1998 WL 1989898, at *2 (Mich. Ct. App. 

Sept. 18, 1998). 

 On June 13, 2013, Petitioner filed a post-conviction motion for relief from judgment with 

the Wayne County Circuit Court, which was denied. People v. Jones, No. 96-004081-FC 

(Wayne County Circuit Court, July 30, 2014).2 The Michigan Court of Appeals denied 

Petitioner’s application for leave to appeal. People v. Jones, No. 323819 (Mich. Ct. App. Dec. 4, 

2014). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, 

which remains pending in that court. 

 Petitioner has now filed a petition for writ of habeas corpus, in which he seeks habeas 

relief on the following grounds: 

I. Petitioner’s mandatory life without parole sentence is unconstitutional under 

the Eighth Amendment. 

II. Parole eligibility under Michigan law does not provide for a meaningful and 

realistic opportunity for release. 

III. Petitioner is entitled to post-conviction relief under MCR 6.500 ET SEQ. 

II. 

Petitioner has asked this Court to hold the instant petition in abeyance to permit him to 

complete post-conviction proceedings in the state courts, in which he is attempting to exhaust 

claims that were not presented to the Michigan appellate courts as part of the direct review 

process. 

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

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

 

2

 The Court obtained some of this information from the Wayne County Circuit Court website, 

https://www.3rdcc.org/. Public records and government documents, including those available from reliable sources 

on the Internet, are subject to judicial notice. See United States ex rel. Dingle v. BioPort Corp., 270 F. Supp. 2d 

968, 972 (W.D. Mich. 2003). A federal district court is also permitted to take judicial notice of another court’s 

website. See, e.g., Graham v. Smith, 292 F. Supp. 2d 153, 155 n.2 (D. Me. 2003). 

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Picard v. Connor, 404 U. S. 270, 275-78 (1971). 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. 1999). Federal district 

courts must dismiss mixed habeas petitions which contain both exhausted and unexhausted 

claims. Pliler v. Ford, 542 U.S. 225, 230 (2004) (citing Rose v. Lundy, 455 U.S. 509, 510 

(1982)). 

 In the present case, Petitioner’s claims are unexhausted because they remain pending 

before the Michigan Supreme Court. A habeas petition should be denied on exhaustion grounds 

where a state post-conviction motion remains pending in the state courts. Juliano v. Cardwell, 

432 F. 2d 1051, 1051 (6th Cir. 1970); Haggard v. State of Tenn., 421 F. 2d 1384, 1386 (6th Cir. 

1970). A federal district court has the authority to abate or dismiss a federal habeas action 

pending resolution of state post-conviction proceedings. See Brewer v. Johnson, 139 F. 3d 491, 

493 (5th Cir. 1998). However, in order to stay federal proceedings and hold a habeas petition in 

abeyance pending resolution of state court proceedings, there must be exceptional or unusual 

circumstances. See Sitto v. Bock, 207 F. Supp. 2d 668, 676 (E.D. Mich. 2002). 

 Petitioner’s motion to hold the petition in abeyance while he completes the exhaustion of 

his claims in the state courts will be granted. In this case, the outright dismissal of the petition, 

albeit without prejudice, might result in preclusion of consideration of his claims in this Court 

due to the expiration of the AEDPA’s one year statute of limitations. See 28 U.S.C. § 

2244(d)(1). A common circumstance calling for abating a habeas petition arises when the 

original petition was timely filed, as is the case here, but a second, exhausted habeas petition 

would be time barred by the AEDPA’s statute of limitations. See Hargrove v. Brigano, 300 F. 

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3d 717, 720-21 (6th Cir. 2002). The United States Supreme Court, in fact, has suggested that a 

habeas petitioner who is concerned about the possible effects of his state post-conviction filings 

on the AEDPA’s statute of limitations could file a “protective” petition in federal court, as 

Petitioner has apparently done here, and then ask for the petition to be held in abeyance pending 

the exhaustion of state post-conviction remedies. See Pace v. DiGuglielmo, 544 U.S. 408, 416

(2005) (citing Rhines v. Weber, 544 U.S. 269 (2005)). A federal court may stay a federal habeas 

petition and hold further proceedings in abeyance pending resolution of state court postconviction proceedings, provided there is good cause for failure to exhaust claims and that the 

unexhausted claims are not “plainly meritless.” Rhines, 544 U.S. at 278. 

 Several other judges in this district have held a habeas petition in abeyance while a 

habeas petitioner’s post-conviction appeal remained pending in the Michigan Supreme Court, as 

is the case here. See McKay v. Sherry, 2008 WL 1808405, *2 (E.D. Mich. April 21, 2008); 

Titlow v. Burt, 2007 WL 2584762, at *3 (E.D. Mich. September 7, 2007); Wood v. Jones, 2006 

WL 1877060, at *2 (E.D. Mich. July 6, 2006); Brown v. Wolfenbarger, 2005 WL 3465862, at *1 

(E.D. Mich. December 16, 2005)(Rosen, J.). 

 Petitioner explains that his claims were not presented on direct appeal because they only 

accrued on June 25, 2012, when the United States Supreme Court issued its decision in Miller v. 

Florida, 132 S. Ct. 2445 (2012). In that decision, the Supreme Court held that mandatory nonparolable life sentences for persons who were under 18 years old at the time of the crime violate 

the Eighth Amendment prohibition against cruel and unusual punishment. Because the holding 

in Miller was clearly unavailable to Petitioner at the time of his direct appeal, he has established 

good cause for not raising this claim earlier. See e.g. Flores v. Hickman, 489 F. Supp. 2d 1097, 

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1100 (C.D. Cal. 2007). Furthermore, Petitioner’s claims do not appear plainly meritless. 

Finally, it does not appear that Petitioner has engaged in “intentionally dilatory tactics.” 

When a district court determines that a stay is appropriate pending exhaustion of state 

court remedies, the district court “should place reasonable time limits on a petitioner’s trip to 

state court and back.” Rhines, 544 U.S. at 578. To ensure that Petitioner does not delay in 

exhausting his state court remedies, the Court will impose time limits within which he must 

proceed. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). Petitioner must ask this 

Court to lift the stay within sixty days of exhausting his state court remedies. “If the conditions 

of the stay are not met, the stay may later be vacated nunc pro tunc as of the date the stay was 

entered, and the petition may be dismissed.” Palmer, 276 F. 3d at 781 (internal quotation 

omitted). 

III. 

 Accordingly, it is ORDERED that the Motion to Stay Proceedings (ECF No. 3) is 

GRANTED and the petition for writ of habeas corpus shall be held in ABEYANCE pending the 

completion of Petitioner’s state application for post-conviction review. This tolling is 

conditioned upon the petitioner re-filing his habeas petition under the current caption and case 

number within sixty (60) days after the conclusion of the state court post-conviction 

proceedings. 

 It is further ORDERED that this case is ADMINISTRATIVELY CLOSED. Nothing 

in this order or in the related docket entry shall be considered a dismissal or disposition of this 

matter. See Sitto, 207 F. Supp. 2d at 677. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: March 18, 2015 

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PROOF OF SERVICE 

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

upon each attorney or party of record herein by electronic means or first 

class U.S. mail and on Daniel Jones #253128, Kinross Correctional 

Facility, 16770 S. Watertower Drive, Kincheloe, MI 49788 by first class 

U.S. mail on March 18, 2015. 

 s/Suzanne M. Gammon 

 SUZANNE M. GAMMON 

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