UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL ALBANE,

Petitioner, 

v.

MARY BERGHUIS, 

Respondent. 

 /

Case Number: 5:15-CV-11423

HON. JOHN CORBETT O’MEARA

OPINION AND ORDER GRANTING PETITIONER’S 

MOTION TO HOLD HABEAS PETITION IN ABEYANCE

AND ADMINISTRATIVELY CLOSING CASE

This is a habeas case under 28 U.S.C. § 2254. Petitioner Michael Albane is a state

inmate at the Brooks Correctional Facility in Muskegon, Michigan. He challenges his

conviction for first-degree felony murder. In addition to his habeas petition, Petitioner

filed a Motion to Hold Petition for Writ of Habeas Corpus in Abeyance. The Court grants

the motion. 

I.

Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of

first-degree felony murder. He was sentenced to life imprisonment. 

Petitioner filed an appeal of right in the Michigan Court of Appeals, arguing that

the prosecution presented insufficient evidence to sustain his conviction, the trial court

erred in telling the jury that Petitioner was charged with first-degree murder, and the

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judgment of sentence incorrectly listed the conviction as first-degree premeditated murder

rather than first-degree felony murder. The Michigan Court of Appeals affirmed

Petitioner’s conviction and remanded for a correction of the judgment of sentence. 

People v. Albane, No. 304331, 2013 WL 1137130 (Mich. Ct. App. March 19, 2013). The

Michigan Supreme Court denied Petitioner’s application for leave to appeal, People v.

Albane, 495 Mich. 912 (Mich. Dec. 23, 2013), and denied Petitioner’s motion for

reconsideration. People v. Albane, 495 Mich. 951 (Mich. Feb. 28, 2014). 

Petitioner has now filed a petition for a writ of habeas corpus. He raises these

claims: (i) insufficient evidence presented to sustain his conviction; (ii) jury returned a

verdict of first-degree premeditated murder where Petitioner was charged with firstdegree felony murder; and (iii) ineffective assistance of trial and appellate counsel. 

Petitioner also filed a motion to hold habeas petition in abeyance. 

II.

State prisoners must exhaust available state remedies for each of the claims

presented in a habeas petition before seeking a federal writ of habeas corpus. 28 U.S.C. §

2254(b)(1). Petitioner asks for a stay so that he may exhaust his ineffective assistance of

trial and appellate counsel claims in state court. 

A prisoner who has not yet exhausted state court remedies may file a “‘protective’

petition in federal court and ask[] the federal court to stay and abey the federal habeas

proceedings until state remedies are exhausted.” 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

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habeas petition and hold further proceedings in abeyance pending resolution of state court

post-conviction 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. 

Petitioner argues that his unexhausted claims were not presented in state court

because his appellate attorney was ineffective. An appellate attorney cannot be expected

to raise his own ineffective assistance on appeal. Combs v. Coyle, 205 F.3d 269, 276 (6th

Cir. 2000). Thus, the Court finds that Petitioner has asserted good cause for failing

previously to present his claims in state court. In addition, the Court finds that

Petitioner’s claims are not “plainly meritless” and that Petitioner has not engaged in

intentionally dilatory tactics. See Rhines, 544 U.S. at 277-78. Therefore, the Court stays

further proceedings in this matter pending Petitioner’s exhaustion of the unexhausted

claims. 

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.” Id. at 278. To ensure that Petitioner does not

delay in exhausting 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 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. “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

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petition may be dismissed.” Palmer, 276 F.3d at 781 (internal quotation omitted). At this

time, the Court makes no finding as to the timeliness of this petition. 

III.

Accordingly, it is ORDERED that Petitioner’s Motion to Hold Petition for Writ of

Habeas Corpus in Abeyance [dkt. #2] is GRANTED. The habeas petition is STAYED

and further proceedings in this matter are held in ABEYANCE. If Petitioner fails to file a

motion for relief from judgment with the state trial court within sixty days from the date

of this order, the Court will dismiss the petition for writ of habeas corpus without

prejudice. Petitioner shall file a motion to lift the stay in this Court within sixty days after

the conclusion of the state court proceedings.

It is further ORDERED that, to avoid administrative difficulties, the Clerk of Court

close this case for statistical purposes only. Nothing in this order or in the related docket

entry shall be considered a dismissal of this matter. 

s/John Corbett O’Meara 

United States District Judge

Date: August 26, 2015

I hereby certify that a copy of the foregoing document was served upon the parties

of record on this date, August 26, 2015, using the ECF system and/or ordinary mail.

s/William Barkholz 

Case Manager

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