UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD LOVELACE, #225683,

Petitioner,

v. CASE NO. 15-CV-11886

WARDEN J. BARRETT,

Respondent.

 /

OPINION AND ORDER DENYING THE MOTION FOR A STAY OF

THE PROCEEDINGS, DISMISSING THE PETITION FOR A WRIT OF

HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Michigan prisoner Ronald Lovelace (“Petitioner”) has filed a pro se petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state criminal

proceedings. Petitioner pleaded guilty to delivery/manufacture of 50 to 449 grams of

heroin and felony firearm in the Wayne County Circuit Court. He was sentenced to

consecutive terms of one and a half to 20 years imprisonment and two years

imprisonment in 2014. In his petition, he raises claims concerning the voluntariness of

his plea and the effectiveness of trial and appellate counsel.

The matter is before the court on Petitioner’s motion to stay the proceedings and

hold his habeas petition in abeyance so that he can return to the state courts and fully

exhaust his ineffective assistance of appellate counsel issues. For the reasons stated

herein, the court denies Petitioner’s motion to stay the proceedings and instead

dismisses without prejudice the habeas petition. The court also denies a certificate of

appealability and denies leave to proceed in forma pauperis on appeal.

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I. BACKGROUND

Petitioner states that he filed a motion to withdraw his plea with the state trial

court concerning the voluntariness of his plea and the effectiveness of trial counsel. 

The trial court denied the motion and denied reconsideration. Petitioner then filed a

delayed application for leave to appeal with the Michigan Court of Appeals, which was

denied “for lack of merit in the grounds presented.” People v. Lovelace, No. 323715

(Mich. Ct. App. Nov. 7, 2014) (unpublished). Petitioner also filed an application for

leave to appeal with the Michigan Supreme Court, which was denied in a standard

order. People v. Lovelace, _ Mich. _, 862 N.W.2d 209 (April 28, 2015). Petitioner dated

his federal habeas petition on May 18, 2015 and dated his motion to stay the

proceedings on June 2, 2015.

II. DISCUSSION

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 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); see also Williams

v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). Each issue must be

presented to the Michigan Court of Appeals and the Michigan Supreme Court to satisfy

the exhaustion requirement. Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich.

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1999); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). 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). While the exhaustion requirement is not

jurisdictional, a “strong presumption” exists that a petitioner must exhaust all 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, 17

F.3d at 160.

Petitioner has not met his burden of demonstrating exhaustion of state court

remedies. While his habeas petition indicates that he exhausted all of his claims in the

state courts, his motion to stay the proceedings indicates that he has filed a “mixed

petition” and has not fully exhausted his ineffective assistance of appellate counsel

issues in the state courts.

Generally, a federal district court should dismiss a “mixed” habeas petition, that

is, one containing both exhausted and unexhausted claims, “leaving the prisoner with

the choice of returning to state court to exhaust his claims or amending and

resubmitting the habeas petition to present only exhausted claims to the district court.” 

Rose v. Lundy, 455 U.S. 509, 510 (1982); see also Rust, 17 F.3d at 160. While the

exhaustion requirement is strictly enforced, it is not a jurisdictional prerequisite for

bringing a habeas petition. Granberry v. Greer, 481 U.S. 129, 134-35 (1987). For

example, an unexhausted claim may be addressed if pursuit of state court remedies

would be futile, see Witzke v. Withrow, 702 F. Supp. 1338, 1348 (W.D. Mich. 1988), or if

the unexhausted claim is meritless such that addressing it would be efficient and not

offend federal-state comity. Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); see

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also 28 U.S.C. § 2254(b)(2) (habeas petition may be denied on merits despite failure to

exhaust state remedies).

Additionally, a federal court has discretion to stay a mixed habeas petition to

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

instance and then return to federal court on a perfected petition. Rhines v. Weber, 544

U.S. 269, 276 (2005). 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 before proceeding in federal court, there is no evidence of

intentional delay, and the unexhausted claims are not “plainly meritless.” Id. at 277.

Petitioner has available remedies in the Michigan courts by which to satisfy the

exhaustion requirement. As he acknowledges in his petition, he may file a motion for

relief from judgment pursuant to Michigan Court Rule 6.500 with the state trial court and

then pursue his unexhausted claims in the state appellate courts as necessary. 

Petitioner thus has additional remedies in the state courts which must be exhausted

before he seeks federal habeas relief.

Petitioner requests a stay of the proceedings and to hold his habeas petition in

abeyance while he pursues additional state remedies. A stay of the proceedings is not

warranted. First, the one year statute of limitations applicable to federal habeas actions,

see 28 U.S.C. § 2244(d), does not pose a concern. The one-year limitations period

does not begin to run until 90 days after the conclusion of direct appeal, see Jimenez v.

Quarterman, 555 U.S. 113, 120 (2009) (stating that a conviction becomes final when

“the time for filing a certiorari petition expires”); Lawrence v. Florida, 549 U.S. 327, 333

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(2007). The Michigan Supreme Court denied leave to appeal on April 28, 2015, and the

time for seeking a writ of certiorari with the United States Supreme Court (90 days) has

not yet expired. Petitioner dated his federal habeas petition on May 18, 2015. Thus,

the one-year period has not yet begun to run. Moreover, while the time in which this

case has been pending in federal court is not statutorily tolled, see Duncan v. Walker,

533 U.S. 167, 181-82 (2001) (a federal habeas petition is not an “application for State

post-conviction or other collateral review” within the meaning of 28 U.S.C. § 2244(d)(2)

so as to statutorily toll the limitations period), such time is equitably tolled. See, e.g.,

Johnson v. Warren, 344 F. Supp. 2d 1081, 1088-89 (E.D. Mich. 2004). The limitations

period will also be tolled during the time in which any properly filed post-conviction or

collateral actions are pending in the state courts. See 28 U.S.C. § 2244(d)(2); Carey v.

Saffold, 536 U.S. 214, 219-221 (2002). Petitioner thus has sufficient time, the full oneyear period, to fully exhaust all of his issues in the state courts and return to federal

court should he wish to do so.

Additionally, while there is no evidence of intentional delay, Petitioner has not

shown good cause for failing to raise his additional issues in the state courts before

seeking federal habeas relief. Lastly, Petitioner’s unexhausted issues concern matters

of federal law which do not appear to be “plainly meritless.” Given such circumstances,

a stay is unwarranted and a non-prejudicial dismissal of the petition is appropriate.

III. CERTIFICATE OF APPEALABILITY

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

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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

appealability should issue if it is shown that jurists of reason would find it debatable

whether the petitioner 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, 484-85 (2000). Reasonable jurists

could not debate the correctness of the court’s procedural ruling. 

IV. CONCLUSION

For the reasons stated, the court concludes that Petitioner must exhaust state

court remedies as to all of his claims before proceeding on federal habeas review and

that a stay is unwarranted. Accordingly, 

IT IS ORDERED that Petitioner’s motion for a stay of the proceedings is DENIED and

the petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE. Should

Petitioner wish to proceed only on the fully exhausted claims contained in his habeas

petition, he may move to reopen this case and proceed on an amended habeas petition

containing only fully exhausted claims within 30 days of the filing date of this order. The

court makes no determination as to the merits of his habeas claims.

IT IS FURTHER ORDERED that the court DECLINES to issue a certificate of

appealability.

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: June 30, 2015

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

on this date, June 30, 2015, by electronic and/or ordinary mail.

 S/Lisa Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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