UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLIAM EDWARD LAVELY,

Petitioner, Case Number 2:15-CV-11245

HONORABLE GEORGE CARAM STEEH

v. UNITED STATES DISTRICT JUDGE

THOMAS WINN,

Respondent.

_________________________/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT

OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE

William Edward Lavely, (“Petitioner”), confined at the Saginaw Correctional

Facility in Freeland, Michigan, filed a petition for writ of habeas corpus with this Court

pursuant to 28 U.S.C. § 2254, challenging his convictions for two counts of first-degree

criminal sexual conduct, MICH. COMP. LAWS § 750.520(b)(1)(A). Petitioner has filed

a motion hold the petition in abeyance to permit him to return to the state courts to

present additional claims that have not been exhausted with the state courts and that

are not included in his current habeas petition. For the reasons stated below, the Court

holds the petition in abeyance and stays the proceedings under the terms outlined in

this opinion to permit petitioner to return to the state courts to exhaust his additional

claims. The Court will also administratively close the case. 

I. Background

Petitioner was convicted following a jury trial in the Clare County Circuit Court. 

Petitioner’s conviction was affirmed on appeal. People v. Lavely, No. 312389 (Mich. Ct.

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App. Nov. 12, 2013); lv. den. 495 Mich. 994 (2014).

Petitioner filed a petition for writ of habeas corpus, seeking habeas relief on the

one claim that he raised on his appeal of right before the Michigan Court of Appeals. 

Petitioner has filed a motion to hold the petition in abeyance, so he can return to

the state courts to raise additional claims which have not been exhausted with the state

courts.

II. Discussion

A federal district court has authority to abate or dismiss a federal habeas action

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

491, 493 (5th Cir. 1998). However, to stay federal proceedings and hold a habeas

petition in abeyance pending resolution of state court proceedings, there must be

exceptional or unusual circumstances. Sitto v. Bock, 207 F. Supp. 2d 668, 676 (E.D.

Mich. 2002); Hudson v. Martin, 68 F. Supp. 2d 798, 800 (E.D. Mich. 1999). A federal

district court is authorized to stay fully exhausted federal habeas petitions pending the

exhaustion of other claims in the state courts. See Nowaczyk v. Warden, New

Hampshire State Prison, 299 F.3d 69, 77-79 (1st Cir. 2002)(holding that district courts

should “take seriously any request for a stay.”); Anthony v. Cambra, 236 F. 3d 568, 575

(9th Cir. 2000); See also Bowling v. Haeberline, 246 Fed. Appx. 303, 306 (6th Cir.

2007)(a habeas court is entitled to delay a decision in a habeas petition that contains

only exhausted claims “when considerations of comity and judicial economy would be

served”)(quoting Nowaczyk, 299 F. 3d at 83). Indeed, although there is no bright-line

rule that a district court can never dismiss a fully-exhausted habeas petition because of

the pendency of unexhausted claims in state court, in order for a federal court to justify

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departing from the “heavy obligation to exercise jurisdiction,” there must be some

compelling reason to prefer a dismissal over a stay. Nowaczyk, 299 F. 3d at 82 (internal

quotation omitted); see also Bowling, 246 Fed. Appx. at 306 (district court erred in

dismissing petition containing only exhausted claims, as opposed to exercising its

jurisdiction over petition, merely because petitioner had independent proceeding

pending in state court involving other claims). 

The Court grants petitioner’s motion to hold the petition in abeyance while he

returns to the state courts to exhaust. The outright dismissal of the petition, albeit

without prejudice, might result in preclusion of consideration of petitioner’s claims in this

Court due to the expiration of the one year statute of limitations contained in the

Antiterrorism and Effective Death Penalty Act (AEDPA). 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, but a second, exhausted habeas petition would be time barred

by the AEDPA’s statute of limitations. See Hargrove v. Brigano, 300 F. 3d 717, 720-21

(6th Cir. 2002). 

The U.S. Supreme Court 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 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;

278 (2005)). A federal court may stay a federal habeas petition and hold further

proceedings in abeyance pending resolution of state court post-conviction proceedings,

if there is good cause for failure to exhaust and the unexhausted claims are not “plainly

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meritless.” Rhines, 544 U.S. at 278. 

Petitioner’s claims do not appear to be “plainly meritless.” Wagner v. Smith, 581

F.3d 410, 419 (6th Cir. 2009). Further, petitioner asserts that he did not previously raise

these claims in the state courts due to the ineffective assistance of appellate counsel.

Id., at 419, nn. 4 and 5. 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 278. To ensure that

petitioner does not delay in exhausting his state court remedies, the Court imposes

upon petitioner time limits within which he must proceed. See Palmer v. Carlton, 276

F.3d 777, 781 (6th Cir. 2002). Petitioner must present his claims in state court by filing

a post-conviction motion for relief from judgment with the state trial court within sixty

days from the date of this Order. See id. Further, he must ask this Court to lift the stay

within sixty days of exhausting his state court remedies. See id. 

Petitioner’s method of properly exhausting his claims in the state courts would be

through filing a motion for relief from judgment with the Clare County Circuit Court under

M.C.R. 6.502. See Wagner, 581 F. 3d at 419. A trial court is authorized to appoint

counsel for petitioner, seek a response from the prosecutor, expand the record, permit

oral argument, and hold an evidentiary hearing. M.C.R. 6.505-6.507, 6.508 (B) and (C). 

Denial of a motion for relief from judgment is reviewable by the Michigan Court of

Appeals and the Michigan Supreme Court upon the filing of an application for leave to

appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. Nasr v. Stegall, 978 F. Supp. 714,

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717 (E.D. Mich. 1997). Petitioner, in fact, is required to appeal the denial of his postconviction motion to the Michigan Court of Appeals and the Michigan Supreme Court in

order to properly exhaust the claims that he would raise in his post-conviction motion.

See e.g. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002). 

III. ORDER

IT IS HEREBY ORDERED that the proceedings are STAYED and the Court will

hold the habeas petition in abeyance. Petitioner must file a motion for relief from

judgment in state court within sixty days of receipt of this order. He shall notify this

Court in writing that such motion papers have been filed in state court. If he fails to file

a motion or notify the Court that he has done so, the Court will lift the stay and will

reinstate the original petition for writ of habeas corpus to the Court’s active docket and

will proceed to adjudicate only the claim that was raised in the original petition. After

petitioner fully exhausts his new claims, he shall file an amended petition that includes

the new claims within sixty days after the conclusion of his state court post-conviction

proceedings, along with a motion to lift the stay. Failure to do so will result in the Court

lifting the stay and adjudicating the merits of the claim raised in petitioner’s original

habeas petition. 

To avoid administrative difficulties, the Court ORDERS the Clerk of Court to

CLOSE this case for statistical purposes only. 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. 

It is further ORDERED that upon receipt of a motion to reinstate the habeas

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petition following exhaustion of state remedies, the Court will order the Clerk to reopen

this case for statistical purposes.

Dated: May 5, 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

May 5, 2015, by electronic and/or ordinary mail and also on

William Lavely #848603, Saginaw Correctional Facility,

9625 Pierce Road, Freeland, MI 48623.

s/Barbara Radke

Deputy Clerk

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