1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

DOUGLAS JACKSON, 

Petitioner, 

v. 

LES PARISH, 

Respondent.                           

______________                              /      

Case No. 15-cv-11622 

UNITED STATES DISTRICT COURT 

JUDGE

GERSHWIN A. DRAIN

 

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR 

WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE 

CASE 

 Douglas Jackson, (“Petitioner”), confined at the Baraga Maximum 

Correctional Facility in Baraga, Michigan, filed a petition for writ of habeas corpus 

with this Court pursuant to 28 U.S.C. § 2254, challenging his convictions and 

sentences for three counts of first-degree criminal sexual conduct, MICH. COMP. 

LAWS § 750.520(b), one count of assault with intent to do great bodily harm, MICH. 

COMP. LAWS § 750.84, and one count of unlawful imprisonment, MICH. COMP. 

LAWS § 750.349b. 

 For the reasons that follow, the Court holds the petition in abeyance and stays 

the proceedings under the terms outlined in this opinion to permit petitioner to 

complete state post-conviction proceedings in the state courts where he has been 

attempting to exhaust additional claims. The Court administratively closes the case. 
2 

I. Background 

 Petitioner was convicted following a jury trial in the Wayne County Circuit 

Court. Petitioner’s conviction was affirmed on appeal, although the case was 

remanded for re-sentencing. People v. Jackson, No. 295994, 2011 WL 1519654 

(Mich. Ct. App. Apr. 21, 2011); lv. den. 490 Mich. 911, 805 N.W. 2d 191 (2011). 

Following re-sentencing, petitioner’s sentence was affirmed on appeal. People v. 

Jackson, No. 308329, 2013 WL 4746759 (Mich. Ct. App. Sept. 3, 2013); lv. den. 

495 Mich. 935, 843 N.W. 2d 209 (2014). 

 Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 

2254, which was held in abeyance to permit petitioner to return to the state courts to 

exhaust additional claims which had not yet been presented to the state courts. ECF 

No.5. 

 Petitioner attempted to file a post-conviction motion for relief from judgment 

with the state trial court, but his initial motion was returned by the trial court because 

it exceeded fifty pages. People v. Jackson, No. 09-003770-01 (Wayne Cty. Cir. Ct. 

Jan. 21, 2016). Petitioner subsequently filed another motion for relief from 

judgment and a subsequent motion to amend the motion for relief from judgment. 

The trial court judge denied petitioner post-conviction relief on several grounds, 

including the belief that at a least a portion of the motion for relief from judgment 

constituted a prohibited successive motion for relief from judgment within the 
3 

meaning of M.C.R. 6.502(G). People v. Jackson, No. 09-003770-01 (Wayne Cty. 

Cir. Ct. Nov. 21, 2016). 

 Petitioner claims that he filed a motion for reconsideration with the trial court 

on December 9, 2016, which was never adjudicated by that court. 

 The Michigan Court of Appeals dismissed petitioner’s subsequently filed 

post-conviction appeal because it was untimely filed. People v. Jackson, No. 342075 

Order (Mich. Ct. App. March 29, 2018). 

 The trial judge subsequently entered an order granting a correction to the 

register of actions as had been ordered by the Michigan Court of Appeals. People v. 

Jackson, No. 09-003770-01 (Wayne Cty. Cir. Ct. Jan. 11, 2017). 

 Petitioner filed a motion for legal assistance to assist him with filing an 

application for leave to appeal with the Michigan Supreme Court following the 

dismissal of his appeal by the Michigan Court of Appeals on March 29, 2018. This 

Court denied petitioner’s request, in part because the fifty-six-day deadline for filing 

an application for leave to appeal with the Michigan Supreme Court had expired. 

This Court believed, based on petitioner’s motion, that he no longer had any postconviction remedies remaining in the state courts. This Court found that the petition 

was now ripe for consideration, permitted petitioner to reopen his case to the Court’s 

active docket and gave him an opportunity to file an amended habeas petition. 
4 

Jackson v. Parish, No. 15-CV-11622, 2018 WL 3020463 (E.D. Mich. June 15, 

2018). 

 Petitioner has since filed an amended petition and numerous pleadings. 

Respondent filed an answer to the petition, and petitioner has filed a reply brief. 

 While petitioner’s case was again pending before this Court, petitioner had a 

post-conviction appeal that had been filed with the Michigan Court of Appeals. The 

appeal was denied because petitioner had failed to demonstrate entitlement to an 

application of any of the exceptions to the general rule that a movant may not appeal 

the denial of a successive motion for relief from judgment. People v. Jackson, No. 

342075 Order (Mich. Ct. App. March 12, 2019). 

 This Court believed, in light of all of the pleadings received by petitioner and 

respondent, that the petition was now ripe for a merits review. In preparing to 

adjudicate the merits of the petition, this Court learned that the Michigan Supreme 

Court, on September 10, 2019, remanded the matter to the Wayne County Circuit 

Court to address petitioner’s motion for reconsideration: 

On order of the Court, the motions to file a supplement are GRANTED. 

The applications for leave to appeal the March 12, 2019 orders of the 

Court of Appeals are considered. Pursuant to MCR 7.305(H)(1), in lieu 

of granting leave to appeal, we REMAND the case of People v. 

Jackson, Wayne CC: 09-003770-FC, to the Wayne Circuit Court for 

reconsideration of whether the defendant’s May 24, 2016 motion for 

relief from judgment is a successive motion, as the circuit court states 

in the November 21, 2016 order denying relief from judgment, and for 

further proceedings as set forth in this order. 
5 

We first note that the circuit court record is in disarray and possibly 

incomplete. Based on the record provided to this Court, the defendant 

filed his first motion for relief from judgment on July 16, 2015. The 

defendant sought to amend that motion on October 16, 2015. The 

amended motion for relief from judgment was returned to the defendant 

by order dated January 21, 2016, because it exceeded the page limit. 

The defendant was encouraged to resubmit the motion after redacting 

his issues and arguments to a more manageable length. The defendant 

refiled the motion on May 24, 2016. This motion was denied by the 

circuit court on November 21, 2016, in an order that characterized the 

motion as successive and denied relief under MCR 6.502(G). 

In support of its characterization of the motion for relief from judgment 

as a successive motion, the circuit court’s November 21, 2016 order 

states that an earlier motion for relief from judgment was denied on 

November 24, 2015. No such order can be found in the record provided 

to this Court. The Register of Actions states that an order was entered 

on November 24, 2015, but it does not describe the order and this 

appears to be a reference to an unrelated order dated November 23, 

2015, denying the defendant’s request for a copy of the Register of 

Actions. We further note that the circuit court’s description of the 

procedural history of the case in its January 26, 2016 opinion returning 

the motion for relief from judgment to the defendant, and in a March 

11, 2016 order denying the defendant’s request for the appointment of 

counsel, does not support the conclusion that the defendant’s May 24, 

2016 motion for relief from judgment is a successive motion. 

Under these circumstances, we REMAND the case of People v. 

Jackson to the Wayne Circuit Court for reconsideration of whether the 

defendant’s May 24, 2016 motion for relief from judgment is a 

successive motion under MCR 6.502(G). On remand, the circuit court 

shall issue an opinion setting forth its analysis. If the circuit court 

determines that the defendant’s motion for relief from judgment is not 

a successive motion, as appears to be the case based on the circuit court 

record provided to this Court, the circuit court shall decide the motion 

under the standard set forth in MCR 6.508(D). If, however, the court 

determines that the motion for relief from judgment was correctly 

denied under MCR 6.502(G) as a successive motion, it shall then rule 

on the motion for reconsideration that the defendant filed on December 

9, 2016. A date-stamped copy of the motion for reconsideration is 
6 

contained in the circuit court file, but the motion is not listed in the 

Register of Actions, and there is no order in the circuit court file 

deciding the motion. 

 We do not retain jurisdiction. 

In re Jackson, No. 159412, 2019 WL 4302547, at *1–2 (Mich. Sept. 10, 

2019). 

II. Discussion 

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

exhaust his or her available state court remedies before raising a claim in federal 

court. 28 U.S.C. § 2254(b) and(c); Picard v. Connor, 404 U. S. 270, 275-78 (1971);

Hannah v. Conley, 49 F. 3d 1193, 1195 (6th Cir. 1995). 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 generally 

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, 522 (1982)). An exception to this rule is only if the petitioner no longer has 

any available state court remedies to exhaust his or her claims. See Hannah v. 

Conley, 49 F. 3d at 1195-96. 
7 

In the present case, the Michigan Supreme Court has remanded petitioner’s 

case back to the Wayne County Circuit Court to adjudicate petitioner’s motion for 

reconsideration and to determine whether petitioner’s May 24, 2016 should be 

considered a first post-conviction motion for relief from judgment governed by the 

standards under M.C.R. 6.508(D) for granting post-conviction relief or whether the 

motion constitutes a successive motion for relief from judgment, in which case the 

judge shall deny petitioner’s December 9, 2016 motion for reconsideration. 

The general rule is that a habeas petition should be denied on exhaustion 

grounds where the petitioner’s state post-conviction motion remains pending in the 

state courts, as is now the case here. See e.g. Juliano v. Cardwell, 432 F. 2d 1051, 

1051 (6th Cir. 1970). This Court also notes that should the Wayne County Circuit 

Court judge on remand deny petitioner’s post-conviction motion, 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; see Wagner v. Smith, 581 F. 3d 410, 

414 (6th Cir. 2009). Where a habeas petitioner has an opportunity under state law 

to file an appeal following the state trial court’s denial of his or her state postconviction motion, the petitioner has failed to exhaust state court remedies. See Cox 

v. Cardwell, 464 F. 2d 639, 644-45 (6th Cir. 1972). Finally, a federal court cannot 
8 

consider granting habeas relief “if there still is a potential state remedy for the state 

courts to consider.” See Wagner v. Smith, 581 F. 3d 410, 415 (6th Cir. 2009). 

Moreover, when an appeal or post-conviction challenge of a state criminal 

conviction is pending in the state courts, as is the case here, “a would-be habeas 

corpus petitioner must await the outcome of his appeal before his state remedies are 

exhausted, even where the issue to be challenged in the writ of habeas corpus has 

been finally settled in the state courts.” Sherwood v. Tomkins, 716 F. 2d 632, 634 

(9th Cir. 1983). The rationale behind this rule is that even if the federal constitutional 

question raised by a habeas corpus petitioner cannot be resolved by the state courts 

in a pending state appeal or post-conviction proceeding, that appeal or collateral 

challenge may result in the reversal of the petitioner’s conviction on some other 

ground, thereby mooting any federal question. Id.; see also Woods v. Gilmore, 26 

F.Supp.2d 1093, 1095 (C.D.Ill.1998); Garrett v. Larson, 2:13–CV–11339; 2013 WL 

1681258, * 2 (E.D. Mich. Apr. 17, 2013); Szymanski v. Martin, No. 99-CV-76196-

DT; 2000 WL 654916, * 2 (E.D. Mich. Apr. 13, 2000). 

Other considerations support holding the petition in abeyance, as opposed to 

adjudicating the petition on the merits. Specifically, “the Court considers the 

consequences to the habeas petitioner if it were to proceed to adjudicate the petition 

and find that relief is not warranted before the state courts ruled on unexhausted 

claims. In that scenario, should the petitioner subsequently seek habeas relief on the 
9 

claims the state courts rejected, he would have to clear the high hurdle of filing a 

second habeas petition.” Thomas v. Stoddard, 89 F. Supp. 3d 937, 942 (E.D. Mich. 

2015)(citing 28 U.S.C. 2244(b)(2)). Moreover, “[I]f this Court were to proceed in 

parallel with state post-conviction proceedings, there is a risk of wasting judicial 

resources if the state court might grant relief on the unexhausted claim.” Id. 

The Court holds the petition in abeyance. A common circumstance that calls 

for the abatement of a habeas petition arises when the original petition was timely 

filed, as the case here, but a second, exhausted habeas petition would be time barred 

by the statute of limitations for filing habeas petitions contained in 28 U.S.C. § 

2244(d)(1). See Hargrove v. Brigano, 300 F. 3d 717, 720-21 (6th Cir. 2002). This 

Court has the discretion to stay the petition and hold it in abeyance even though 

petitioner did not specifically request this Court to do so. See e.g. Banks v. Jackson, 

149 F. App’x. 414, 422, n. 7 (6th Cir. 2005). However, even where a district court 

determines that a stay is appropriate pending exhaustion, the district court “should 

place reasonable time limits on a petitioner’s trip to state court and back.” Rhines v. 

Weber, 544 U.S. 269, 278 (2005). To ensure that there are no delays by petitioner 

in exhausting state court remedies, this Court imposes time limits within which 

petitioner must proceed with his state court post-conviction proceedings. See 

Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002). The Court holds the petition 

in abeyance to allow petitioner to complete post-conviction proceedings in the state 
10 

courts. This tolling is conditioned upon petitioner returning to federal court within 

sixty days of completing the exhaustion of state court post-conviction remedies. 

Hargrove, 300 F. 3d at 721. 

III. ORDER 

 IT IS HEREBY ORDERED that the proceedings are STAYED and the 

Court will hold the habeas petition in abeyance. Petitioner shall move to reopen his 

habeas petition within sixty (60) days of the conclusion of his state post-conviction 

proceedings. 

 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 

Thomas, 89 F. Supp. 3d at 943-944. 

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

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

reopen this case for statistical purposes. 

IT IS SO ORDERED.

Dated: September 20, 2019 

 s/Gershwin A. Drain 

 HON. GERSHWIN A. DRAIN 

 United States District Court Judge 

 
11 

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing document was mailed to the attorneys 

of record on this date, September 20, 2019, by electronic and/or ordinary mail. 

s/Teresa McGovern 

Case Manager