UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

YUL DAVIES,

Petitioner, Civil No. 2:15-CV-11651

HONORABLE MARIANNE O. BATTANI

v. UNITED STATES DISTRICT JUDGE

DAVE FENBY,

Respondent,

_________________________________/

OPINION AND ORDER DIRECTING THE CLERK OF THE COURT TO AMEND

THE CASE CAPTION, GRANTING THE MOTION TO STAY, HOLDING IN

ABEYANCE THE PETITION FOR WRIT OF HABEAS CORPUS, AND

ADMINISTRATIVELY CLOSING THE CASE.

Yul Davies, (“Petitioner”), presently confined at the Carson City

Correctional Facility in Carson City, Michigan, filed a pro se petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his

conviction for second-degree home invasion, M.C.L.A. 750.110a(3); and larceny

in a building, M.C.L.A. 750.360. 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 orders the

Clerk of the Court to amend the case caption to Davies v. Fenby. The Court

grants the motion to stay the proceedings and holds the petition in abeyance

under the terms outlined in this opinion to permit petitioner to return to the state

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courts to exhaust his additional claims. The Court will also administratively close

the case.

I. Background

Petitioner was found guilty of the above offenses following a jury trial in the

Wayne County Circuit Court. Petitioner’s conviction was affirmed on appeal.

People v. Davies, No. 315948, 2014 WL 4087912 (Mich.Ct.App. August 19,

2014); lv. den. 862 N.W. 2d 229 (2015).

On May 4, 2015, petitioner filed a petition for writ of habeas corpus with this

Court, in which he seeks relief on the four grounds that he raised on his direct

appeal. 1

Petitioner has now 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. The Court amends the caption to reflect the correct spelling of

petitioner’s last name.

The Court notes that the current case caption spells petitioner’s last name

as “Davis.” Petitioner’s last name, in fact, is spelled “Davies.” The Court orders

the Clerk of the Court to amend the case caption to “Davies v. Fenby.”

1 Under the prison mailbox rule, this Court assumes that petitioner filed his habeas petition on

May 4, 2015, the date that it was signed and dated. See Neal v. Bock, 137 F. Supp. 2d 879, 882, fn. 1

(E.D. Mich. 2001).

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B. The motion to stay the proceedings is granted. 

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 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

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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 the

petitioner’s claims in this Court due to the expiration of the AEDPA’s one year

statute of limitations. See 28 U.S.C. § 2244(d)(1). The U.S. Supreme Court has

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, as petitioner appears to have done, and then

ask for the petition to be held in abeyance pending the exhaustion of state postconviction remedies. See 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

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

581 F. 3d 410, 419 (6th Cir. 2009). Further, petitioner may assert that he did not

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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. 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

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

The exhaustion doctrine, in the context of habeas cases, turns upon an

inquiry of whether there are available state court procedures for a habeas

petitioner to exhaust his claims. See Adams v. Holland, 330 F. 3d 398, 401 (6th

Cir. 2003). Petitioner has an available state court remedy with which to exhaust

his claims. Exhausting state court remedies in this case requires the filing of a

post-conviction motion for relief from judgment under Michigan Court Rule 6.500,

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et. seq. See Wagner, 581 F. 3d at 419. Petitioner could exhaust these claims by

filing a post-conviction motion for relief from judgment with the Wayne County

Circuit Court under M.C.R. 6.502. 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. See

Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997). Petitioner, in fact, is

required to appeal the denial of his post-conviction motion to the Michigan Court

of Appeals and the Michigan Supreme Court in order to properly exhaust any

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 Clerk of the Court amend the caption of

the case to “Davies v. Fenby.”

IT IS FURTHER 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

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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 claims that were

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

Clerk to reopen this case for statistical purposes.

Date: August 26, 2015 s/Marianne O. Battani 

MARIANNE O. BATTANI

United States District Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their

respective email addresses or First Class U.S. mail to the non-ECF participants on August 26, 2015

s/ Kay Doaks

Case Manager

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