UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHANCHEZ D. STEWART,

Petitioner, Civil No. 2:15-CV-11919 

HONORABLE GEORGE CARAM STEEH

v. UNITED STATES DISTRICT JUDGE

JEFFREY WOODS,

Respondent.

________________________/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF

HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE

Chanchez D. Stewart, (“Petitioner”), confined at the Chippewa Correctional Facility

in Kincheloe, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254. In his pro se application, petitioner challenges his convictions for first-degree

murder, Mich. Comp. Laws § 750.316(1)(a); and possession of a firearm in the commission

of a felony, Mich. Comp. Laws § 750.227b. Petitioner has also filed a motion to hold the

petition in abeyance in order to permit him to complete post-conviction proceedings in the

state courts, in which he is attempting to exhaust his fourth and fifth claims.

For the reasons that follow, the Court will hold the petition in abeyance and will stay

the proceedings under the terms outlined below in the opinion to permit petitioner to

complete his post-conviction proceedings in the state court or courts, failing which the

petition shall be dismissed without prejudice. The Court will also administratively close the

case.

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I. Background

Petitioner was convicted of the above offenses following a jury trial in the Wayne

County Circuit Court. Petitioner’s conviction was affirmed on appeal. People v. Stewart,

No. 300476, 2012 WL 75352 (Mich. Ct. App. Jan. 10, 2012). Petitioner’s application for

leave to appeal to the Michigan Supreme Court was denied as being untimely filed on

January 28, 2013.

Petitioner filed a post-conviction motion for relief from judgment, which was denied.

People v. Stewart, No. 10-003925-01 (Wayne County Circuit Court, May 14, 2012). The

Michigan Court of Appeals denied petitioner leave to appeal. People v. Stewart, No.

324437 (Mich.Ct.App. February 25, 2015). Petitioner’s application for leave to appeal is

currently pending in the Michigan Supreme Court.

Petitioner filed the petition for writ of habeas corpus on May 19, 2015. Petitioner

seeks habeas relief on five grounds. By his own admission, petitioner’s fourth and fifth

claims have yet to be exhausted because they were raised for the first time in his postconviction motion for relief from judgment. Petitioner’s application for leave to appeal from

the denial of that motion remains pending in the Michigan Supreme Court.

II. Discussion

The instant petition is subject to dismissal because petitioner, by his own admission,

has failed to exhaust several of his claims with the state courts. 

As a general rule, a state prisoner seeking federal habeas relief must first exhaust

his or her 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,

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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. Federal district courts must

dismiss mixed habeas petitions which contain both exhausted and unexhausted claims.

See Pliler v. Ford, 542 U.S. 225, 230 (2004)(citing Rose v. Lundy, 455 U.S. 509, 510, 522

(1982)). A habeas petitioner has the burden of proving that he or she has exhausted his

or her state court remedies. See Sitto v. Bock, 207 F. Supp. 2d 668, 675 (E.D. Mich. 2002).

Petitioner’s habeas application is subject to dismissal because it contains claims that

have yet to be completely exhausted with the state courts. Petitioner’s fourth and fifth

claims were raised for the first time on post-conviction review. Petitioner’s appeal from the

denial of his post-conviction motion for relief from judgment remains pending in the

Michigan Supreme Court. Denial of a motion for relief from judgment is reviewable by the

Michigan Court of Appeals and the Michigan Supreme Court upon the filing of an

application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. See Nasr v.

Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997). Petitioner’s application for leave to

appeal the denial of his first post-conviction motion is pending in the Michigan Supreme

Court. Because petitioner failed to complete the appellate process for his post-conviction

motion, he has failed to satisfy the exhaustion requirement. See e.g. Paffhousen v.

Grayson, 238 F. 3d 423 (Table), No. 2000 WL 1888659, *2 (6th Cir. December 19,

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2000)(petitioner failed to fairly present his claims in his Rule 6.500 motion, when he failed

to appeal the denial of the motion to the Michigan Court of Appeals and the Michigan

Supreme Court); Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002)(same). A

habeas petition should be denied on exhaustion grounds where a state post-conviction

motion remains pending in the state courts. Juliano v. Cardwell, 432 F. 2d 1051, 1051 (6th

Cir. 1970); Haggard v. State of Tenn., 421 F. 2d 1384, 1386 (6th Cir. 1970). Where a

habeas petitioner has an opportunity under state law to file an appeal following the state

trial court’s denial of his state post-conviction motion, the petitioner has failed to exhaust

his state court remedies. See Cox v. Cardwell, 464 F. 2d 639, 644-45 (6th Cir. 1972).

The Court is concerned that 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 AEDPA’s one year statute of limitations. See 28 U.S.C. §

2244(d)(1). 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 could file a “protective” petition in federal court, as petitioner appears

to have done, and then ask for the 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. Several

judges in this district have held a habeas petition in abeyance while a habeas petitioner’s

post-conviction appeal remained pending in the Michigan Supreme Court, as is the case

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here. See McKay v. Sherry, 2008 WL 1808405, *2 (E.D. Mich. April 21, 2008)(Gadola,

J.);Titlow v. Burt, 2007 WL 2584762 (E.D. Mich. September 7, 2007)(Battani, J.); Wood v.

Jones, 2006 WL 1877060 (E.D. Mich. July 6, 2006)(Friedman, J.); Brown v. Wolfenbarger,

2005 WL 3465862 (E.D. Mich. December 16, 2005)(Rosen, J.).

Petitioner’s claims do not appear to be “plainly meritless.” Wagner, 581 F. 3d at 419. 

Further, petitioner asserts that he did not properly raise these claims in the state courts due

to the ineffective assistance of appellate counsel. Id., at 419, nn. 4 and 5. Finally, it does

not appear that petitioner has engaged in “intentionally dilatory tactics.”

When 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. To ensure that petitioner does not

delay in exhausting his state court remedies, the Court imposes upon petitioner time limits

within which she must proceed. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). 

Petitioner must present his claims in state court by filing a post-conviction motion for relief

from judgment with the state trial court within sixty days from the date of this Order, which

he has already done. See Id. Further, he must ask this Court to lift the stay within sixty

days of exhausting his state court remedies. Id. “If the conditions of the stay are not met,

the stay may later be vacated nunc pro tunc as of the date the stay was entered, and the

petition may be dismissed.” Palmer, 276 F. 3d at 781 (internal quotation omitted).

III. ORDER

Accordingly, it is ORDERED that the petition for writ of habeas corpus shall be held

in abeyance pending the completion of petitioner’s state application for post-conviction

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review. This tolling is conditioned upon petitioner re-filing his habeas petition under the

same case number and the same case caption within sixty (60) days after the conclusion

of his state court post-conviction proceeding in the state courts. Petitioner is free at that

time to file an amended habeas petition which contains newly exhausted claims. 

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 at 677. 

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.

Dated: August 18, 2015

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

August 18, 2015, by electronic and/or ordinary mail and also

on Chanchez Stewart #536676, Chippewa Correctional

Facility, 4269 W. M-80, Kincheloe, MI 49784.

s/Barbara Radke

Deputy Clerk

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