UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

MICHAEL J. WALTON, 

 Petitioner, Civil Case Number 15-10609 

 Honorable Linda V. Parker 

v. 

THOMAS MACKIE, 

 Respondent, 

_____________________________________/ 

OPINION AND ORDER GRANTING PETITIONER’S MOTION TO STAY 

PROCEEDINGS AND HOLD PETITION IN ABEYANCE AND 

ADMINISTRATIVELY CLOSING THE CASE

 Petitioner Michael J. Walton (“Petitioner”), confined at the Oaks 

Correctional Facility in Manistee, Michigan, has filed a petition for writ of habeas 

corpus with this Court pursuant to 28 U.S.C. § 2254. Petitioner is challenging his 

convictions in the Circuit Court for Wayne County, Michigan, for assault with 

intent to commit murder, unlawful imprisonment, and felony-firearm. On June 24, 

2015, Petitioner filed a motion to stay proceedings and 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 are not included in his current 

habeas petition. For the reasons stated below, the Court is granting Petitioner’s 

motion subject to certain conditions.

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I. Background 

Petitioner was convicted of the above offenses following a bench trial in the 

Wayne County Circuit Court. He raised one issue on direct appeal: the prosecution 

failed to present sufficient evidence to support his conviction of assault with intent 

to murder. People v. Walton, No. 306950, 2013 WL 2420980, at *1 (Mich. Ct. 

App. June 5. 2013) The Michigan Court of Appeals affirmed Petitioner’s 

conviction on June 5, 2013. Id. Petitioner filed an application for leave to appeal 

in the Michigan Supreme Court, which the Court denied on November 25, 2013. 

People v. Walton, 839 N.W.2d 483 (Mich. 2013). It does not appear from 

Petitioner’s pleadings that a petition for writ of certiorari was filed with the United 

State Supreme Court. 

 In the instant petition for habeas corpus relief, signed and dated on February 

17, 2015, Petitioner states that he is being detained in violation of his Sixth and 

Fourteenth Amendment rights. (See ECF No. 1 ¶ 9.) Petitioner makes no 

argument in support of this assertion, relying on the brief filed in support of his 

direct appeal which raised only his insufficiency of the evidence claim. In his 

current motion, Petitioner indicates that he would like to return to the state courts 

to now raise claims alleging violations of his Sixth and Fourteenth Amendment 

rights. (ECF No. 9.) Specifically, Petitioner indicates that he will argue that he 

was denied: (1) a fair trial because the prosecutor knowingly allowed false 

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testimony to be introduced; (2) effective assistance of counsel due to trial counsel’s 

failure to object to the presentation of this false testimony and investigate several 

witnesses who would have provided testimony in Petitioner’s favor; and (3) 

effective assistance of appellate counsel due to counsel’s failure to raise the first 

and second issues on appeal. (Id.) 

II. Applicable Law & Analysis 

 Petitioner must exhaust his Sixth and Fourteenth Amendment claims in the 

state courts before raising those claims in a federal habeas court under 28 U.S.C. 

§ 2254. 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). To satisfy this 

requirement, the claims must be “fairly presented” to the state courts, meaning that 

the prisoner 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); Williams 

v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006). The claims must also be presented 

to the state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d 365, 

368 (6th Cir. 1984). A Michigan prisoner must properly present each issue he 

seeks to raise in a federal habeas proceeding to both the Michigan Court of 

Appeals and the Michigan Supreme Court to satisfy the exhaustion requirement. 

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See Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The burden is on the 

petitioner to prove exhaustion. Rust, 17 F.3d at 160. 

 By his own admission, Petitioner has failed to exhaust his Sixth and 

Fourteenth Amendment claims. This Court has the authority to dismiss the petition 

pending his exhaustion of those claims in state post-conviction proceedings or to 

stay his petition in the interim. See Rhines v. Weber, 544 U.S. 269, 276 (2005). 

“Stay and abeyance” is available in only “limited circumstances,” however, such as 

where the applicable one-year statute of limitations poses a concern and the 

petitioner demonstrates “good cause” for the failure to exhaust state remedies 

before proceeding in federal court, has not engaged in intentionally dilatory 

litigation tactics, and the unexhausted claims are not “plainly meritless.” Id. at 277. 

 The Court finds it appropriate to grant Petitioner’s request to hold his 

petition in abeyance while he exhausts the claims through post-conviction 

proceedings in the state courts. 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). 

Assuming that Petitioner did not file a petition for writ of certiorari with the 

United States Supreme Court, the one-year limitations period began to run on 

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February 25, 2014-- ninety days after the Michigan Supreme Court denied his 

application for leave to appeal. See Linscott v. Rose, 436 F.3d 587, 591 (6th Cir. 

2006) (explaining that AEDPA’s one-year statute of limitations does not begin to 

run until the time (ninety days) for filing a petition for a writ of certiorari for direct 

review in the United States Supreme Court has expired). As indicated, Petitioner 

signed and dated his present petition on February 10, 2015. Three hundred and 

fifty days of the one-year period had lapsed by that date, leaving only fifteen days 

remaining. Further, the Court cannot conclude that Petitioner’s unexhausted 

claims are plainly meritless or that he has engaged in “intentionally dilatory 

tactics.” 

 The Supreme Court advised in Rhines that when a district court determines 

that a stay is appropriate pending exhaustion of state court remedies, the court 

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

544 U.S. at 278. To ensure that Petitioner does not delay in exhausting his state 

court remedies, the Court imposes the time limits set forth below within which 

Petitioner must proceed. 

 Accordingly, the Court GRANTS Petitioner’s Motion to Stay Proceedings 

and Hold Petition in Abeyance on the following conditions. First, within sixty 

(60) days of receipt of this Opinion and Order, Petitioner must file his postconviction motion in the state court and notify this Court in writing that such 

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motion papers have been filed in state court. Petitioner’s failure to file a motion or 

notify this Court of its filing within that time-frame will result in this Court lifting 

the stay, reinstating the original habeas petition to its active docket, and 

adjudicating the petition on the one claim raised therein. Second, Petitioner must 

return to this Court within sixty (60) days of exhausting his state court remedies 

and file in this case (i.e., with the above case caption and case number) a motion to 

lift the stay and an amended petition including any additional claims he wishes to 

raise in support of his request for habeas relief. 

 Respondent need not respond to the original petition by the date previously 

set by the Court. The Court will order a response by a new deadline if and when 

Petitioner returns to federal court. 

To avoid administrative difficulties, the Clerk shall CLOSE this case for 

statistical purposes only. Nothing in this decision or in the related docket entry 

shall be considered a dismissal or disposition of this matter. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: July 13, 2015 

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

record and/or pro se parties on this date, July 13, 2015, by electronic and/or U.S. 

First Class mail. 

 s/ Richard Loury 

 Case Manager 

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