UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

Amari Johnson, 

 Petitioner, 

v. 

Duncan MacLaren, 

 Respondent. 

 /

Case No. 15-cv-11304 

Hon. Judith E. Levy 

OPINION AND ORDER DENYING PETITIONER’S MOTION TO 

HOLD PETITION FOR WRIT OF HABEAS CORPUS IN 

ABEYANCE [1] AND DISMISSING PETITION WITHOUT 

PREJUDICE

 Michigan state prisoner Amari Johnson has filed a pro se petition 

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that 

he is being held in violation of his constitutional rights. (Dkt. 1.) 

Petitioner was convicted in the Oakland County Circuit Court of two 

counts of delivery or manufacture of less than 50 grams of a controlled 

substance. Before the Court is Petitioner’s motion to hold the petition 

in abeyance so that he can raise unexhausted claims in the state courts. 

(Dkt. 1 at 22.) For the reasons set forth below, the Court will deny 

Petitioner’s motion, dismiss the petition without prejudice, and deny a 

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certificate of appealability. 

I. Background

 Petitioner pled guilty in Oakland County Circuit Court to two 

counts of delivery or manufacture of less than 50 grams of a controlled 

substance. On April 11, 2014, he was sentenced as a fourth habitual 

offender to 3 to 30 years’ imprisonment for each conviction, to be served 

concurrently. 

 Petitioner filed an application for leave to appeal in the Michigan 

Court of Appeals, raising a claim that his right to due process was 

violated because the trial court relied on inaccurate information in 

sentencing him. The Michigan Court of Appeals denied leave to appeal 

“for lack of merit in the grounds presented.” People v. Johnson, No. 

322315 (Mich. Ct. App. July 25, 2014). Petitioner then filed an 

application for leave to appeal in the Michigan Supreme Court. He 

raised the sentencing-related claim and two additional claims: (1) trial 

counsel was ineffective in failing to object to prosecutorial misconduct at 

sentencing, and appellate counsel was ineffective in failing to raise this 

claim in the Michigan Court of Appeals; and (2) the prosecutor 

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committed misconduct at sentencing. The Michigan Supreme Court 

denied leave to appeal. People v. Johnson, 497 Mich. 948 (Mich. Dec. 

30, 2014). 

 Petitioner filed his federal habeas petition on March 7, 2015, 

raising the same three claims raised in the Michigan Supreme Court. 

II. Discussion

 Petitioner seeks a stay because two claims raised in the petition 

were not exhausted in state court. A prisoner filing a petition for a writ 

of habeas corpus under 28 U.S.C. § 2254 must first exhaust all state 

remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state 

prisoners must give the state courts one full opportunity to resolve any 

constitutional issues by invoking one complete round of the State’s 

established appellate review process”). To satisfy this requirement, the 

claims must be “fairly presented” to the state courts; i.e., 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). A defendant has failed to “fairly present” an issue when it is 

raised for the first time on discretionary review. Castille v. Peoples, 489 

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U.S. 346, 351 (1989). While the exhaustion requirement is not 

jurisdictional, a “strong presumption” exists that a petitioner must 

exhaust available state remedies before seeking federal habeas review. 

Granberry v. Greer, 481 U.S. 129, 131, 134-35 (1987). The burden is on 

the petitioner to prove exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th 

Cir. 1994). 

 Two of the claims raised in the petition were raised for the first 

time in Petitioner’s application for leave to appeal in the Michigan 

Supreme Court. Because the Michigan Supreme Court denied leave to 

appeal, the claims were not fairly presented in state court and are 

unexhausted. See Farley v. Lafler, 193 F. App’x 543, 549 (6th Cir. 2006) 

(holding that an issue is not fairly presented when it is raised for the 

first time to the Michigan Supreme Court, and that court declines to 

exercise its right to discretionary review). 

 A prisoner is required to comply with the exhaustion requirement 

as long as there is still a state-court procedure available for him to do 

so. See Adams v. Holland, 330 F.3d 398, 401 (6th Cir. 2003). In this 

case, a procedure is available to Petitioner. He may file a motion for 

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relief from judgment in the Oakland County Circuit Court under 

Michigan Court Rule 6.502. If that motion is denied, he may seek 

review by the Michigan Court of Appeals and Michigan Supreme Court 

by filing an application for leave to appeal. Nasr v. Stegall, 978 F. 

Supp. 714, 717 (E.D. Mich. 1997) (citing Mich. Ct. R. 6.509, 7.203, and 

7.302). 

 A federal district court has discretion to stay a habeas petition to 

allow a petitioner to present unexhausted claims to the state courts in 

the first instance and then return to federal court on a perfected 

petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). However, stay 

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

the one-year statute of limitations applicable to federal habeas actions 

poses a concern, and when the petitioner demonstrates “good cause” for 

the failure to exhaust state court remedies and the unexhausted claims 

are not “plainly meritless.” Id. at 277. 

 Petitioner has not shown the need for a stay. The one-year statute 

of limitations applicable to federal habeas actions, 28 U.S.C. § 2244(d), 

does not begin to run until 90 days after the conclusion of direct appeal. 

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Gonzalez v. Thaler, — U.S. —, 132 S. Ct. 641, 653 (2012) (stating that a 

conviction becomes final when the time for filing a certiorari petition 

expires). The Michigan Supreme Court denied leave to appeal on 

December 30, 2014, and Petitioner had 90 days from that date, until 

March 30, 2015, to seek a writ of certiorari with the United States 

Supreme Court. Petitioner filed his federal habeas petition on March 7, 

2015. Thus, the limitations period had not even commenced at the time 

he filed his petition. 

 Assuming that Petitioner files an appropriate post-conviction 

motion in the state court within a reasonable period of time, the 

remaining portion of the limitations period allows him ample time to refile his petition, including the exhausted and unexhausted claims, after 

the conclusion of any proceedings on his motion in the state trial and 

appellate courts, because “[t]he time during which a properly filed 

application for State post-conviction or other collateral review with 

respect to the pertinent judgment or claim is pending shall not be 

counted toward any period of limitation under this subsection.” 28 

U.S.C. § 2244(d)(2). “[A] post-conviction or collateral proceeding . . . 

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toll[s] the [AEDPA] statute of limitations, but does not restart it.” 

Anderson v. Brunsman, 562 F. App’x 426, 430 (6th Cir. 2014) (citing 28 

U.S.C. § 2244(d)(2)). Because he has time to exhaust his state 

remedies, Petitioner has not shown the need for a stay and a nonprejudicial dismissal of the habeas petition is appropriate. 

III. Conclusion

 Accordingly, Petitioner’s Motion to Hold Petition for Writ of 

Habeas Corpus in Abeyance (Dkt. 4) is DENIED, and his petition for a 

writ of habeas corpus is DISMISSED WITHOUT PREJUDICE. If 

Petitioner wishes to proceed on the exhausted claim and abandon his 

unexhausted claims, he may move to reopen these proceedings within 

thirty days from the date of the Order. 

 Before Petitioner may appeal the Court’s decision, a certificate of 

appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 

22(b). A certificate of appealability may issue “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” 28 

U.S.C. § 2253(c)(2). When a federal court denies a habeas claim on 

procedural grounds without addressing the merits, a certificate of 

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appealability should issue only if it is shown that “jurists of reason 

would find it debatable whether the petition states a valid claim of the 

denial of a constitutional right, and that jurists of reason would find it 

debatable whether the district court was correct in its procedural 

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because 

reasonable jurists could not debate the correctness of the Court’s 

procedural ruling, a certificate of appealability is DENIED. 

 IT IS SO ORDERED. 

Dated: May 21, 2015 s/Judith E. Levy 

Ann Arbor, Michigan JUDITH E. LEVY 

United States District Judge 

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served 

upon counsel of record and any unrepresented parties via the Court’s 

ECF System to their respective email or First Class U.S. mail addresses 

disclosed on the Notice of Electronic Filing on May 21, 2015. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

 

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