UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DARRIN LaPINE, 

Petitioner,

 Case No. 5:15-cv-11206

v. Hon. John Corbett O'Meara

 United States District Judge

KENNETH ROMANOWSKI,

Respondent.

_______________________________/

OPINION AND ORDER GRANTING PETITIONER’S MOTION TO STAY AND HOLD

THE PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE [Dkt. 6]

This is a habeas corpus case filed under 28 U.S.C. §2254 by a Michigan prisoner. Petitioner

Darrin LaPine pleaded guilty in the Chippewa Circuit Court to aggravated domestic assault - second

offense. MICH. COMP. LAWS § 750.81. He was sentenced as a fourth-time habitual felony offender

to 3-to-15 years imprisonment. The petition enumerates thirty-one separate claims. 

Petitioner has filed a motion to stay his case so he can return to state courts and exhaust 

additional claims of newly discovered evidence, prosecutorial misconduct, and suppression of

exculpatory evidence. Petitioner claims that on April 13, 2015, he filed a motion for relief from

judgment in the trial court raising these claims. Petitioner asserts that on August 17, 2015, he was

appointed counsel by the trial court and that an evidentiary hearing is being sought. Respondent

filed an answer to the petition, but it does not address Petitioner’s request for a stay.

For the reasons stated below, the Court holds the petition in abeyance and stays the

proceedings under the terms outlined in this opinion to permit Petitioner to exhaust his new claims. 

I. Background

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Following his conviction and sentence, Petitioner filed an application for leave to appeal in

the Michigan Court of Appeals, seeking an amendment to the judgment of sentence. The Michigan

Court of Appeals denied the application “for lack of merit in the grounds presented.” People v.

LaPine, No. 309429 (Mich. Ct. App. June 5, 2012). Petitioner subsequently filed an application for

leave to appeal in the Michigan Supreme Court that was denied by standard order. People v. LaPine,

825 N.W.2d 66 (Mich. 2013) (table).

Petitioner attempted to file an additional direct appeal, but it was dismissed for lack of

jurisdiction. People v. LaPine, No. 310744 (Mich. Ct. App. June 26, 2012). 

Petitioner then appealed his probation violation conviction, raising eighteen issues, but that

appeal was also denied for lack of merit in the grounds presented. People v. LaPine, No. 315548

(Mich. Ct. App. Oct. 23, 2013). The Michigan Supreme Court then denied the application because

it was not persuaded that the questions presented should be reviewed by the court. People v. LaPine,

856 N.W.2d 10 (2014), reconsideration denied, 861 N.W.2d 15 (2015).

Petitioner attempted to further direct appeals, that were dismissed for administrative reasons.

People v. LaPine, No. 313694 (Mich. Ct. App. Jan. 16, 2013); People v. LaPine, No. 320948 (Mich.

Ct. App. Apr. 2, 2014). 

Petitioner then returned to the trial court and filed a motion for relief from judgment, raising

ten claims. The trial court denied the motion for relief from judgment because Petitioner had failed

to comply with Michigan Court Rule 6.508(D)(3). Petitioner filed an application for leave to appeal

in the Michigan Court of Appeals. The Michigan Court of Appeals denied the application for leave

to appeal for failure to establish entitlement to relief under Michigan Court Rule 6.508(D). People

v. LaPine, No. 323524 (Mich. Ct. App. Dec. 22, 2014). Petitioner applied for leave to appeal this

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decision in the Michigan Supreme Court, and the Michigan Supreme Court recently denied relief

with citation to the same court rule. People v. LaPine, No. 150772 (Mich. Sup. Ct. Sept. 29, 2015). 

II. Discussion

Petitioner seeks to eventually present his newly discovered unexhausted claims in this action.

A state prisoner seeking federal habeas relief, however, must first exhaust his available state court

remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and (c). See Picard v. Connor,

404 U.S. 270, 275-78 (1971). The Antiterrorism and Effective Death Penalty Act (AEDPA)

preserves the traditional exhaustion requirement, which mandates dismissal of a habeas petition

containing claims that a petitioner has a right to raise in the state courts but has failed to do so. See

Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999). Although exhaustion is not a

jurisdictional matter, “it is a threshold question that must be resolved” before a federal court can

reach the merits of any claim contained in a habeas petition. See Wagner v. Smith, 581 F. 3d 410,

415 (6th Cir. 2009). Therefore, each claim must be reviewed by a federal court for exhaustion before

any claim may be reviewed on the merits by a federal court. Id.

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 may ask

for a federal habeas petition to be held in abeyance pending the exhaustion of state post-conviction

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.

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According to the allegations in Petitioner’s motion, he has discovered claims concerning the

suppression of evidence by the prosecution. Also according to Petitioner the trial court has appointed

counsel to represent him. Again, Respondent has not filed any opposition to Petitioner’s motion.

Because Petitioner is alleging his unexhausted claims are based on newly discovered facts, it appears

he may have a remedy under Michigan Court Rule 6.502(G). The fact that he has been appointed

counsel by the trial court, together with Respondent’s failure to oppose the motion, prevents this

Court from finding that Petitioner’s unexhausted claims are “plainly meritless.” See Rhines, 544

U.S. at 278.

However, even where 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. Therefore, to ensure that there are

no delays by Petitioner in exhausting his state court remedies, this Court will impose upon Petitioner

time limits within which he must proceed with his state court post-conviction proceedings. See

Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002).

This tolling is conditioned upon Petitioner diligently pursuing relief in the state courts by 

pursuing a timely appeal in the state courts if his motion for relief from judgment is denied, and then

returning to federal court within sixty days of completing the exhaustion of his state court

post-conviction remedies. See Hargrove v. Brigano, 300 F. 3d 717, 718 (6th Cir. 2002).

III. Order

Accordingly, it is ORDERED that Petitioner’s motion to stay (Dkt. 6) is GRANTED. The

petition for writ of habeas corpus shall be held in abeyance pending completion of Petitioner’s state

application for post-conviction review. This tolling is conditioned upon Petitioner re-filing his

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habeas petition—using the case number already assigned to this case—within sixty days after the

conclusion of the state court post-conviction proceedings.

 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 v. Bock, 207 F. Supp. 2d 668, 677

(E.D. Mich. 2002).

It is further ORDERED that upon receipt of a motion to reinstate the habeas petition

following exhaustion of state remedies, the Court may order the Clerk to reopen this case for

statistical purposes.

s/John Corbett O’Meara 

United States District Judge

Date: October 22, 2015

I hereby certify that a copy of the foregoing document was served upon the parties of record

on this date, October 22, 2015, using the ECF system and/or ordinary mail.

s/William Barkholz 

Case Manager

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