UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

On November 21, 2014, Petitioner Darrius Martice McCrary filed a pro se habeas corpus 

petition under 28 U.S.C. § 2254. (Dkt. 1.) Shortly thereafter, he filed a motion to stay this case to 

allow him to exhaust state remedies for one of his claims. (Dkt. 4.) For the reasons that follow, 

the motion will be granted and the habeas petition will be held in abeyance pending exhaustion 

of state remedies. 

I. BACKGROUND 

Petitioner was convicted in Oakland County Circuit Court of first-degree murder (under 

two theories), Mich. Comp. Laws § 750.316, first-degree home invasion, Mich. Comp. Laws § 

750.110a, and three counts of possession of a firearm during the commission of a felony, Mich. 

Comp. Laws § 750.227b. The trial court sentenced Petitioner to life imprisonment for the 

murder, seven to twenty years in prison for the home invasion, and two years in prison for 

possession of a firearm during the commission of a felony. 

Petitioner appealed his convictions on grounds that: (1) the trial court deprived him of his 

right to present a defense by denying his request for a jury instruction on voluntary 

DARRIUS MARTICE MCCRARY, 

 Petitioner, 

 

v. 

 

STEVE RIVARD, 

 Respondent. 

Case No. 14-cv-14485 

Honorable Laurie J. Michelson 

OPINION AND ORDER GRANTING PETITIONER’S MOTION FOR A STAY [4] 

AND CLOSING CASE FOR ADMINISTRATIVE PURPOSES 

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manslaughter; (2) the prosecutor’s comments on Petitioner’s failure to present a defense violated 

his constitutional rights and shifted the burden of proof; and (3) the judgment of sentence 

improperly reflects two convictions for first-degree murder and felony firearm even though there 

was only one homicide. The Michigan Court of Appeals affirmed Petitioner’s convictions, but 

vacated one conviction for felony firearm. See People v. McCrary, No. 308237, 2013 WL 

2662752 (Mich. Ct. App. June 13, 2013). On November 25, 2013, the Michigan Supreme Court 

denied leave to appeal because it was not persuaded to review the issues. See People v. McCrary, 

495 Mich. 901; 839 N.W.2d 470 (2013) (table). 

On November 21, 2014, Petitioner filed his habeas petition, raising the same three issues 

that he presented to the state court. He also raises a fourth issue regarding the use of allegedly 

inflammatory photographs at trial. Petitioner claims that he raised this issue in a post-conviction 

motion for relief from judgment, which is pending in the state trial court. (Pet. at 11.) In his 

motion for a stay, filed on December 8, 2014, Petitioner asks the Court to hold his habeas 

petition in abeyance while he exhausts state remedies for his fourth claim. 

II. ANALYSIS 

The doctrine of exhaustion of state remedies requires state prisoners to fairly present all 

their claims to the state courts before raising their claims in a federal habeas corpus petition. 

See 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This requirement 

is satisfied if a prisoner “invok[es] one complete round of the State’s established appellate 

review process,” including a petition for discretionary review in the state supreme court, “when 

that review is part of the ordinary appellate review procedure in the State.” O’Sullivan v. 

Boerckel, 526 U.S. at 845, 847. Thus, to be properly exhausted, each habeas claim must have 

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been fairly presented to the state court of appeals and to the state supreme court. Wagner v. 

Smith, 581 F.3d 410, 414 (6th Cir. 2009). 

Petitioner alleges that he exhausted state remedies for his first three claims on direct 

appeal and that he is in the process of exhausting state remedies for his fourth claim. As such, his 

petition is a “mixed” petition of exhausted and unexhausted claims. Federal district courts 

ordinarily must dismiss a habeas petition containing any unexhausted claims. Rose v. Lundy, 455 

U.S. 509, 510, 522 (1982). But because Petitioner filed his petition nearly a year after the 

Michigan Supreme Court denied leave to appeal, dismissal of this case could result in a 

subsequent petition being barred by the one-year statute of limitations. See 28 U.S.C. § 2244(d). 

In such a situation, the Supreme Court has authorized a “stay-and-abeyance” procedure in 

which a federal court stays an action and holds a habeas petition in abeyance while the petitioner 

returns to state court to exhaust state remedies for previously unexhausted claims. Rhines v. 

Weber, 544 U.S. 269, 275 (2005). After the petitioner exhausts state remedies, the district court 

can lift the stay and allow him to proceed in federal court. Id. at 275-76. 

This stay-and-abeyance procedure is appropriate only in “limited circumstances.” Id. at 

277. However, “it likely would be an abuse of discretion for a district court to deny a stay and to 

dismiss a mixed petition if the petitioner had good cause for his failure to exhaust, his 

unexhausted claims are potentially meritorious, and there is no indication that the petitioner 

engaged in intentionally dilatory litigation tactics.” Id. at 278. “In such circumstances, the district 

court should stay, rather than dismiss, the mixed petition,” because “the petitioner’s interest in 

obtaining federal review of his claims outweighs the competing interests in finality and speedy 

resolution of federal petitions.” Id. 

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As noted above, the one-year statute of limitations would pose an issue if this Court were 

to dismiss the Petition. And while Petitioner ultimately may not prevail on his unexhausted 

claim, he has already raised the issue in state court and he does not appear to be engaged in 

dilatory litigation tactics. Moreover, he alleges that “ineffective appellate counsel” was the cause 

for his failure to raise the issue on direct appeal. The Court therefore concludes that it is not an 

abuse of discretion to stay these proceedings while Petitioner continues pursuing his state 

remedies. Accordingly, 

IT IS ORDERED that Petitioner’s motion for a stay (Dkt. #4) is GRANTED. 

IT IS FURTHER ORDERED that, if Petitioner is unsuccessful in state court and wishes 

to re-open this case, he must file an amended habeas corpus petition and a motion to re-open this 

case, within ninety (90) days of exhausting state remedies for the fourth claim. The motion and 

amended petition shall contain the same case number that appears on this order. Any failure to 

comply with the conditions of this stay could result in the dismissal of the habeas petition. 

Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014), petition for cert filed, No. 14-7246 (U.S. 

Nov. 7, 2014). 

IT IS FURTHER ORDERED that the Clerk of the Court shall close this case for 

administrative purposes. Nothing in this order shall be construed as an adjudication of 

Petitioner’s claims. 

s/Laurie J. Michelson 

LAURIE J. MICHELSON 

UNITED STATES DISTRICT JUDGE 

Dated: January 27, 2015 

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CERTIFICATE OF SERVICE 

The undersigned certifies that a copy of the foregoing document was served on the 

attorneys and/or parties of record by electronic means or U.S. Mail on January 27, 2015. 

 s/Jane Johnson 

Case Manager to 

 Honorable Laurie J. Michelson 

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