UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY PORTER,

Petitioner, 

v.

BONITA HOFFNER, 

Respondent. 

 /

Case Number: 2:15-CV-12704

Paul D. Borman 

United States District Judge

OPINION AND ORDER DENYING 

PETITIONER’S MOTION FOR STAY

Petitioner Anthony Porter, a state prisoner currently incarcerated at the

Lakeland Correctional Facility in Coldwater, Michigan, filed a pro se petition for a

writ of habeas corpus under 28 U.S.C. § 2254. He challenges his convictions for

first- and second-degree criminal sexual conduct, Mich. Comp. Laws §§

750.520b(1)(a) & 750.520c(1)(a). Now before the Court is Petitioner’s motion for

stay of proceedings. Petitioner does not have an available remedy to exhaust. 

Therefore, the motion is denied. 

I. Background

Petitioner was convicted by a jury in Wayne County Circuit Court of firstand second-degree criminal sexual conduct. On March 26, 2012, he was sentenced

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to 7 to 20 years’ imprisonment for the first-degree criminal sexual conduct

conviction, and a consecutive sentence of 5-3/4 to 15 years’ imprisonment for the

second-degree criminal sexual conduct conviction. Petitioner filed an appeal of

right in the Michigan Court of Appeals, raising these claims: (i) the trial court

abused its discretion in not allowing a defense witness to testify on the basis of

hearsay; (ii) insufficient evidence supported binding Petitioner over on the firstdegree criminal sexual conduct charge; (iii) due process violated by three year

delay in arresting Petitioner; (iv) denial of Petitioner’s motion to dismiss violated

Due Process and Double Jeopardy Clauses; (v) ineffective assistance of trial

counsel; (vi) prosecutorial misconduct; and (vii) insufficient evidence supported

the first-degree criminal sexual conduct conviction. The Michigan Court of

Appeals affirmed Petitioner’s convictions. People v. Porter, No. 310293, 2013

WL 3814376 (Mich. Ct. App. July 23, 2013). Petitioner filed an application for

leave to appeal in the Michigan Supreme Court, raising the same claims raised in

the Michigan Court of Appeals. The Michigan Supreme Court directed the

prosecuting attorney to address whether the imposition of consecutive sentences

under Mich. Comp. Laws § 750.520b(3), for conduct that occurred before its

enactment, violated the Ex Post Facto Clause. People v. Porter, No. 147678, 2014

WL 492137 (Feb. 5, 2014). The prosecuting attorney conceded “it was error to

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order consecutive sentences because the criminal act preceded the amendment

authorizing consecutive sentences.” People v. Porter, 495 Mich. 990 (Mich. Apr.

28, 2014). The Michigan Supreme Court, in lieu of granting leave to appeal,

remanded the matter to the trial court to amend the judgment of sentence to reflect

that the sentences imposed were to run concurrently. Id. In all other respects,

leave to appeal was denied. Id. 

In September 2014, Petitioner filed a motion for relief from judgment in the

trial court arguing that defects in the complaint and warrant divested the state court

of jurisdiction. The trial court denied the motion. See 4/9/15 Order Denying

Defendant’s Motion for Relief from Judgment (ECF No. 10-14). A review of the

publicly available docket for the Michigan Court of Appeals and Michigan

Supreme Court shows that Petitioner did not seek leave to appeal the trial court’s

decision, and the time for doing so has expired. Mich. Ct. Rule 7.205(G). 

On July 23, 2015, Petitioner filed this habeas corpus petition, raising the

same seven claims raised on state court direct review. After the Court ordered

Respondent to file a response to the petition, Petitioner filed a motion for a stay to

allow him to exhaust state court remedies for additional claims. The issues

Petitioner seeks to exhaust in state court and then raise in his habeas petition are:

(i) the trial court never acquired proper jurisdiction; and (ii) trial and appellate

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counsel were ineffective in failing to raise this issue in the trial court and on direct

appeal. Respondent has filed an answer in opposition to the habeas petition, but

has not filed a response to Petitioner’s motion to stay. 

II. Discussion

State prisoners must exhaust available state remedies for each of the claims

presented in a habeas petition before seeking a federal writ of habeas corpus. 28

U.S.C. § 2254(b)(1). 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 the claims and that

the unexhausted claims are not “plainly meritless.” Rhines v. Weber, 544 U.S. 269,

278 (2005). 

Petitioner already has filed a motion for relief from judgment in the trial

court under Mich. Ct. Rule 6.502, raising a claim that the trial court never obtained

jurisdiction over the criminal proceeding because of defects in the charging

documents. Under Mich. Ct. R. 6.502(G)(1), a defendant generally is entitled to

file only one motion for relief from judgment. Mich. Ct. R. 6.502(G)(2) permits

the filing of a successive motion under two circumstances: 

A defendant may file a second or subsequent motion based on a

retroactive change in law that occurred after the first motion for relief

from judgment or a claim of new evidence that was not discovered

before the first such motion. The clerk shall refer a successive motion

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that asserts that one of these exceptions is applicable to the judge to

whom the case is assigned for a determination whether the motion is

within one of the exceptions.

Mich. Ct. R. 6.502(G)(2).

Petitioner does not argue that a retroactive change in law occurred after his

first motion for relief from judgment. He may not assert a claim of new evidence

because the jurisdiction-related claim was raised in the previous motion for relief

from judgment, and the associated ineffective assistance of counsel claims were

certainly known to Petitioner at that time. 

The Court finds that there remains no available avenue for exhaustion of

Petitioner’s jurisdiction-related claims in state court and, therefore, DENIES the

Motion for Stay (ECF No. 8). 

SO ORDERED. 

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: July 18, 2016

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each attorney or

party of record herein by electronic means or first class U.S. mail on July 18, 2016.

s/Deborah Tofil 

Case Manager

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