UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

Franchot Prather, 

Petitioner,

 Case No. 14-cv-14860

v. Hon. Judith E. Levy

 Mag. Judge Mona J. Majzoub

S. Rivard,

Respondent.

__________________________________/

ORDER HOLDING THE HABEAS PETITION IN ABEYANCE

AND CLOSING THIS CASE FOR ADMINISTRATIVE PURPOSES

Petitioner Franchot Prather recently filed a pro se habeas corpus

petition under 28 U.S.C. § 2254. Petitioner indicates in his habeas petition

that he did not raise his grounds for relief in state court, as required by 28

U.S.C. § 2254(b)(1). Accordingly, the Court will hold this case in abeyance

pending exhaustion of state remedies and close the case for administrative

purposes. 

I. Background

Petitioner was convicted in Wayne County, Michigan of assault with

intent to commit murder, Mich. Comp. Laws § 750.83, felonious assault,

Mich. Comp. Laws § 750.82, felon in possession of a firearm, Mich. Comp.

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Laws § 750.224f, and possession of a firearm during the commission of a

felony, second offense, Mich. Comp. Laws § 750.227b. The trial court

sentenced petitioner on March 29, 2012, to five years in prison for

possession of a firearm during the commission of a felony. The court

ordered this sentence to run consecutively to concurrent prison terms of

thirty-five to seventy-five years for assault with intent to commit murder,

fifty-four months to fifteen years for felonious assault, and seventy-two

months to fifteen years for being a felon in possession of a firearm.

On appeal from his convictions, petitioner argued that (1) the trial

court committed reversible error when it admitted scientific evidence

without an adequate legal foundation and (2) trial counsel was ineffective

for failing to object to the evidence. The Michigan Court of Appeals

disagreed and affirmed petitioner’s convictions in an unpublished decision. 

See People v. Prather, No. 310005, 2013 WL 3835958 (Mich. Ct. App. July

25, 2013). On December 23, 2013, the Michigan Supreme Court denied

leave to appeal. See People v. Prather, 495 Mich. 916; 840 N.W.2d 321

(2013).

On December 17, 2014, petitioner signed and dated his habeas

corpus petition, and on December 22, 2014, the Clerk of Court filed the

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petition. The Court understands the grounds for relief to be: (1) trial

counsel was ineffective for waiving procedural safeguards and disclosing

petitioner’s status, and appellate counsel was ineffective for failing to raise

this issue on appeal; (2) the trial court denied petitioner an opportunity for

impeachment; and (3) trial counsel failed to present an alibi defense. 

Petitioner admits that he did not raise any of these claims in state court. 

II. Discussion

 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, 526

U.S. at 845, 847. Thus, to properly exhaust state remedies, a prisoner

must fairly present the factual and legal basis for each habeas claim to the

state court of appeals and to the state supreme court before raising the

claims in a federal habeas corpus petition. Wagner v. Smith, 581 F.3d 410,

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414-15 (6th Cir. 2009).

Petitioner alleges that he did not exhaust state remedies for his three

claims, but he appears to be saying that he intends to raise the issues, or

has already raised them, in a post-conviction motion for relief from

judgment in the state trial court. Federal district courts ordinarily must

dismiss a habeas petition containing unexhausted claims. Rose v. Lundy, 

455 U.S. 509, 522 (1982). But a 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). 

Federal district courts have authority to grant stays, Rhines v.

Weber, 544 U.S. 269, 276 (2005), and, in appropriate cases, they may stay

a case while an inmate returns to state court to exhaust state remedies for

previously unexhausted claims. See id. at 275. After the inmate exhausts

state remedies, the district court can lift its stay and allow the inmate to

proceed in federal court. Id. at 275-76. 

This stay-and-abeyance procedure is appropriate only in “limited

circumstances,” such as when “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

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litigation tactics.” Id. at 277, 278. In such circumstances, the district

court should stay, rather than dismiss, the habeas 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. at 278.

Petitioner’s unexhausted claims are not plainly meritless, and he

alleges that his appellate attorney was at fault for not raising the claims

on direct appeal. Further, there is no indication that petitioner is engaged

in intentionally dilatory litigation tactics. 

Accordingly,

IT IS ORDERED that this case is stayed and the habeas petition

is held in abeyance pending exhaustion of state remedies. 

IT IS FURTHER ORDERED that, as a condition of this stay,

petitioner must file a motion for relief from judgment in state court within

ninety (90) days of the date of this order if he has not already done so. 

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 his habeas claims. The motion

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and amended petition must contain the same case number that appears

on this order. 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. 

IT IS SO ORDERED. 

 

Dated: January 16, 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 January 16, 2015į

s/Felicia M. Moses

FELICIA M. MOSES

Case Manager

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