UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JUSTIN PHILLIPS,

Petitioner,

CASE NO. 2:15-CV-10893

v. HONORABLE PAUL D. BORMAN

MICHAEL BOUCHARD,

Respondent.

________________________________/

OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT OF 

HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,

AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

Oakland County Jail inmate Justin Phillips (“Petitioner”) has filed a pro se petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He appears to challenge a

probation revocation and his current confinement at the Oakland County Jail. Petitioner’s

probation was revoked on January 8, 2015 and he was sentenced to serve 234 days in jail

with credit for time served. See Docket, Oakland Co. Cir. Ct. No. 2011-239008-FH,

https://courtexplorer.g2cloud.com/oaklandcounty/SearchCases/ViewAction?CaseNo=

2011-239008-FH. For the reasons stated herein, the Court dismisses without prejudice

the petition for a writ of habeas corpus. The Court also denies a certificate of

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appealability and denies leave to proceed in forma pauperis on appeal.1

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)

(“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). The claims must be

“fairly 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 federal

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

prisoner must raise each issue he seeks to present in a federal habeas proceeding 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.

1

To the extent that Petitioner also seeks to challenge an unrelated arrest by

Romulus Police and/or unrelated stalking charges in this case, he cannot do so. 

Rather, he must file a separate habeas petition concerning those matters. See Rule

2(e), Rules Governing Section 2254 Cases (“A petitioner who seeks relief from

judgments of more than one state court must file a separate petition covering the

judgment or judgments of each court”); Sutton v. Romanowski, No. 13-14789,

2015 WL 144671, n. 1 (E.D. Mich. Jan. 12, 2015). The Court shall not address any

such claims in this case.

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Supp. 2d 992, 998 (E.D. Mich. 1999). The burden is on the petitioner to prove

exhaustion. Rust, 17 F.3d at 160.

Petitioner has not met his burden. He fails to indicate that he has fully pursued his

habeas claims in the state courts on direct appeal or collateral review. Moreover, the state

trial court record indicates that he has a motion for relief from judgment pending in the

state trial court concerning the probation revocation at issue in this case. See Docket,

supra. Petitioner must complete the state court process before seeking habeas relief in

federal court. Witzke v. Bell, No. 07-CV-15315, 2007 WL 4557674 (E.D. Mich. Dec. 20,

2007); Harris v. Prelisnik, No. 06-CV-15472, 2006 WL 3759945 (E.D. Mich. Dec. 20,

2006). Federal law provides that a habeas petitioner is only entitled to relief if he can

show that the state court adjudication of his claims resulted in a decision that was

contrary to, or involved an unreasonable application of, clearly established federal law as

determined by the Supreme Court of the United States. 28 U.S.C. § 2254(d). The state

courts must first be given a fair opportunity to rule upon Petitioner’s claims before he can

present them in federal court. Otherwise, the Court cannot apply the standard found at 28

U.S.C. § 2254.

Even if Petitioner’s pending motion does not concern his current claims, that

proceeding may result in some form of relief thereby mooting the federal questions

presented. 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,

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99-CV-76196-DT, 2000 WL 654916 (E.D. Mich. April 13, 2000). Non-prejudicial

dismissal of the habeas petition is warranted under such circumstances.

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

exhausted and unexhausted claims, to allow a petitioner to present the unexhausted claims

to the state courts in the first instance 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 applicable to

federal habeas actions poses a concern, and when the petitioner demonstrates “good

cause” for the failure to exhaust state court remedies before proceeding in federal court

and the unexhausted claims are not “plainly meritless.” Id. at 277. Petitioner does not

request a stay nor indicate that his circumstances justify a stay.

Moreover, a stay is unwarranted. First, all of Petitioner’s habeas claims are

unexhausted. The Court cannot ordinarily stay a petition containing only unexhausted

claims. In such a case, a non-prejudicial dismissal of the petition is appropriate. See

Hines v. Romanowski, No. 2:14-CV-13983, 2014 WL 5420135, *2 (E.D. Mich. Oct. 22,

2014) (dismissing case where all claims were unexhausted); Wilson v. Warren, No. 06-

CV-15508, 2007 WL 37756, *2 (E.D. Mich. Jan.4, 2007) (“a stay of petitioner’s

application for a writ of habeas corpus would be inappropriate, because all of petitioner’s

claims are unexhausted and thus, the Court lacks jurisdiction over the petition while the

petitioner pursues his claims in state court”); accord Rasberry v. Garcia, 448 F.3d 1150,

1154 (9th Cir. 2006) (Rhines stay and abeyance rule does not apply to a petition alleging

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only unexhausted claims); United States v. Hickman, 191 F. App’x 756, 757 (10th Cir.

2006) (“[t]raditionally, when a petition contains entirely unexhausted state claims, the

petition would be dismissed without prejudice....”); McDonald v. Bell, No. 1:06-cv-406,

2009 WL 1525970 (W.D. Mich. June 1, 2009) (concluding that the stay and abeyance

procedure does not apply to a petition containing only unexhausted claims); Mimms v.

Russell, No. 1:08-cv-79, 2009 WL 890509 (S.D. Ohio March 31, 2009) (habeas petition

subject to dismissal where petitioner did not exhaust state court remedies on any of his

habeas claims); Murphy v. Feneis, No. 07-153, 2007 WL 2320540, *7 (D. Minn. Aug.10,

2007) (“Given the narrow issue before the Supreme Court regarding mixed petitions, this

Court refuses to extend Rhines to allow a court to stay a habeas petition, so that a

petitioner can exhaust his state remedies, where, as here, the petition contains only

unexhausted claims.”).

Second, as discussed supra, Petitioner has a motion for relief from judgment

pending in state court concerning his probation revocation. Dismissal of the petition,

rather than a stay of the proceedings, is warranted under such circumstances. See Payne

v. MacLaren, No. 14-CV-11427, 2014 WL 6688774, *3 (E.D. Mich. Nov. 26, 2014)

(dismissing case where petitioner had a matter pending in state court); Davis v. Warren,

No. 13-CV-15215, 2014 WL 186097, *2 (E.D. Mich. Jan. 16, 2014) (same); Glenn v.

Rapelje, No. 11-CV-12759, 2011 WL 5039881, *2 (E.D. Mich. Oct. 24, 2011) (same);

Humphrey, 2008 WL 4858091 at *1 (citing Sherwood, 716 F.2d at 634).

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Third, a stay is unnecessary because the one-year statute of limitations applicable

to federal habeas actions, 28 U.S.C. § 2241(d), does not pose a concern. Petitioner’s

probation was revoked on January 8, 2015 and he filed a motion for relief from judgment

on February 25, 2015. Thus, the one-year period has not yet begun to run, see 28 U.S.C.

§ 2244(d)(1) (providing that the one-year period does not begin running until the

judgment becomes final by the conclusion of direct review or expiration of the time for

seeking such review), and will remain tolled while Petitioner pursues a direct appeal

and/or has a properly filed application for collateral review pending in the state courts. 

See 28 U.S.C. § 2244(d)(2) (providing that the one-year period is tolled while a properly

filed application for state post-conviction or other collateral review pending). 

Furthermore, assuming that Petitioner has not engaged in intentionally dilatory tactics, he

has not shown good cause for failing to exhaust his claims in the state courts before

seeking federal habeas relief. The Court also cannot discern whether his unexhausted

claims are plainly meritless from his current pleadings. Given such circumstances, a stay

is unwarranted and a non-prejudicial dismissal of the habeas petition is appropriate.

III. Conclusion

For the reasons stated, the Court concludes that Petitioner has not exhausted his

claims in the state courts, that he has a matter pending in state court concerning the

probation revocation at issue, and that a stay of the proceedings is unwarranted. 

Accordingly, the Court DISMISSES WITHOUT PREJUDICE the petition for a writ of

habeas corpus. The Court makes no determination as to the merits of Petitioner’s claims.

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Before Petitioner may appeal this 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 “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on procedural

grounds without addressing the merits, a 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

cannot be taken in good faith. See FED. R. APP. P. 24(a). This case is closed.

IT IS SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: March 19, 2015

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CERTIFICATE 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 on March

19, 2015.

s/Deborah Tofil 

Case Manager

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