UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 In 2007, William Armour was convicted of, among other things, second-degree murder. 

After pursing direct appeals and post-conviction relief in the state courts without success, 

Armour filed a petition for habeas corpus with this Court. The claims in Armour’s petition 

appear to be exhausted. But he maintains that he now has two new ways to attack his conviction 

in state court—based on the Michigan Supreme Court’s decision in People v. Lockridge, 498 

Mich. 358, 870 N.W.2d 502 (2015) and the United States Supreme Court’s decision in Lafler v. 

Cooper, — U.S. —, 132 S. Ct. 1376, 1385, 182 L. Ed. 2d 398 (2012). So he asks this Court to 

hold off on ruling on his petition while he again seeks post-conviction relief from the state trial 

court. For the reasons the follow, the Court will grant Armour’s request. 

 When, as here, a court decides whether to hold in abeyance a habeas corpus petition that 

contains only exhausted claims, the question is not whether to stay or dismiss the petition (as 

would be the case with a petition containing both exhausted and unexhausted claims) but 

whether to stay or proceed. Thomas v. Stoddard, 89 F. Supp. 3d 937, 941 (E.D. Mich. 2015). The 

following factors inform a federal court’s decision to proceed in parallel with state postconviction proceedings or instead hold a habeas corpus petition in abeyance: 

WILLIAM ARMOUR, 

 Plaintiff, 

 

v. 

 

DUNCAN MACLAREN, 

 Defendant. 

Case No. 15-10753 

Honorable Laurie J. Michelson 

OPINION AND ORDER GRANTING PETITIONER’S MOTION TO STAY [7] 

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(1) whether the exhausted claims in the petition are plainly meritorious while the 

unexhausted claims plainly meritless (if so, proceeding to adjudicate the claims in the 

petition would avoid unnecessary expenditure of state court resources while still 

respecting the policies underlying exhaustion); 

(2) whether the unexhausted claims are potentially meritorious (if so, allowing the state 

court to adjudicate them first might save federal court resources, furthering the policies 

underlying exhaustion); 

(3) whether the unexhausted claims could be the bases for a viable second habeas petition 

(if so, staying until post-conviction proceedings are complete and then allowing petitioner 

to amend the pending petition would avoid the hurdles involved in filing a successive 

habeas petition); 

(4) whether the exhausted and unexhausted claims are legally or factually related (if so, it 

might be preferable for a federal court to delay ruling on an exhausted claim to avoid 

affecting the state court’s view of an unexhausted claim); 

(5) whether the habeas petitioner has good cause for seeking the stay (if not, the 

consequences of requiring a petitioner to proceed in two courts at once are less unfair to 

the petitioner); 

(6) the potential prejudice to the party opposing the habeas corpus petition; and 

(7) any other considerations relating to judicial economy and federal-state relations. 

See Thomas, 89 F. Supp. 3d at 941–43. 

 Applying the Thomas factors to this case suggests that a stay is proper. On a preliminary 

review, Armour’s habeas corpus claims do not strike the Court as obviously warranting relief: 

Armour has made plausible arguments (e.g., that the denial of his right to counsel of choice was 

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a structural error not requiring him to show prejudice), but Warden MacLaren has made 

plausible counter-arguments (e.g., that the denial of the right to counsel of choice was during a 

photographic lineup, which is not a critical stage of criminal proceedings). And the Court cannot 

say that Armour’s unexhausted claims are plainly meritless. In People v. Lockridge, 498 Mich. 

358, 373–74, 870 N.W.2d 502, 511 (2015), the Michigan Supreme Court held, “to the extent that 

[offense variables] scored on the basis of facts not admitted by the defendant or necessarily 

found by the jury verdict increase the floor of the guidelines range, i.e, the defendant’s 

‘mandatory minimum’ sentence, that procedure violates the Sixth Amendment.” Here, Armour 

implies that several offense variables exposed him to a greater sentence, and the factual 

underpinnings of these variables were found by the judge at sentencing (for example, the judge 

scored one variable based on a finding that the victim’s family member suffered serious 

psychological injury). The Court recognizes that Armour has already filed one motion for postconviction relief, reducing the likelihood that he will succeed with another post-conviction 

motion. See Mich. Ct. Rule 6.502(G). But, as far as this Court can tell, neither the Michigan 

Court of Appeals nor the Michigan Supreme Court have held that Lockridge does not apply 

retroactively, and Michigan Court Rule 6.502(G)(2) allows for a second motion based on “a 

retroactive change in law that occurred after the first motion for relief from judgment.” The 

fourth and fifth factors are mixed: while Armour’s Lockridge claims appear unrelated to the 

exhausted claims in his petition, Armour also has a good basis for not having pursued that claim 

in state court before seeking habeas relief—Lockridge was decided after he filed his petition. On 

balance then, the Thomas factors favor a stay.1

 

1

 The Court acknowledges that Armour intends to seek state post-conviction relief on a 

second unexhausted claim, but a review of his Lockridge claim suffices for a Thomas analysis. 

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 The Court thus GRANTS Armour’s motion to stay and hold his habeas petition in 

abeyance (Dkt. 7). To the extent he has not already done so, Armour must file a motion for relief 

from judgment in state court within 60 days of entry of this order and then immediately file a 

notice with this Court that includes proof of the state court filing and a copy of the filing itself. 

If he fails to timely notify the Court that he has sought state post-conviction relief, the Court will 

proceed to adjudicate the petition as it stands. Within 60 days after the conclusion of the state 

post-conviction proceedings, Armour may amend his habeas petition to add his new claims. 

Otherwise, petitioner must inform the Court that he will proceed with the petition as is. To avoid 

administrative difficulties, the Court orders the Clerk of Court to close this case for statistical 

purposes only. Nothing in this order shall be considered a disposition of petitioner’s petition. 

 SO ORDERED. 

s/Laurie J. Michelson 

LAURIE J. MICHELSON 

UNITED STATES DISTRICT JUDGE 

 Dated: December 4, 2015 

CERTIFICATE OF SERVICE 

The undersigned certifies that a copy of the foregoing document was served on the attorneys 

and/or parties of record by electronic means or U.S. Mail on December 4, 2015. 

 s/Jane Johnson 

Case Manager to 

 Honorable Laurie J. Michelson 

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