UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

DARRYL BULLARD., # 341908, 

 Petitioner, Case No. 15-cv-12370 

v Honorable Thomas L. Ludington 

PAUL KLEE, 

 

 Respondent. 

__________________________________________/ 

ORDER DENYING PETITIONER’S MOTION TO HOLD PETITION IN ABEYANCE 

AND DENYING WITHOUT PREJUDICE PETITIONER’S MOTIONS FOR 

DISCOVERY AND EXPANSION OF THE RECORD 

 This is a habeas corpus case filed under 28 U.S.C. §2254 by Petitioner Darryl Bullard, a 

Michigan prisoner incarcerated at the Gus Harrison Correctional Facility. Petitioner was 

convicted in the Wayne Circuit Court of second-degree murder under MCL § 750.317, felon in 

possession of a firearm under MCL § 750.224f, and possession of a firearm during the 

commission of a felony under MCL § 750.227b. In his current petition, Petitioner Bullard raises 

a single claim: he was denied the effective assistance of trial counsel when his attorney failed to 

investigate the blood evidence found in a vehicle. ECF No. 1. 

 Petitioner now moves the Court to stay his petition and hold the case in abeyance so that 

he can return to state court and exhaust his claims. ECF No. 7. Specifically, Petitioner wishes to 

raise allegations of ineffective assistance of counsel and a claim that his sentencing proceeding 

violated the Sixth Amendment. Id. Petitioner has also filed two motions for discovery, seeking 

DNA testing. ECF Nos 2, 3. For the reasons stated below, Petitioner’s motion to hold his federal 

petition in abeyance will be denied, and his motions for discovery will be denied without 

prejudice. 

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I.

 

 Petitioner alleges that both newly discovered evidence and a change in Michigan law 

have given rise to additional claims. First, Petitioner argues that newly discovered evidence 

supports additional claims of ineffective assistance of counsel. Second, Petitioner alleges that he 

has a new claim of unlawful sentencing under the Michigan Supreme Court’s recent holding in 

People v. Lockridge, No. 149073, 2015 WL 4562293 (Mich. July 29, 2015) (holding that 

Michigan’s sentencing guideline scheme violates the Sixth Amendment). Petitioner therefore 

requests that the Court hold his Federal Habeas Petition in abeyance while he exhausts these new 

claims in Michigan State Court. 

A. 

 A state prisoner seeking federal habeas relief 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, a federal court must review each of a 

petitioner’s claims for exhaustion before it reviews the claims on the merits. Id. 

 A federal district court has discretion to stay a petition to allow a petitioner to present 

unexhausted claims to the state courts, and then return to federal court on a perfected petition. 

See Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is available only in “limited 

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circumstances,” such as when the one-year statute of limitations poses a concern, the petitioner 

demonstrates “good cause” for failing to exhaust his state remedies before proceeding in federal 

court, the petitioner has not engaged in intentionally dilatory litigation tactics, and the 

unexhausted claims are not “plainly meritless.” Id. at 277. 

B. 

Petitioner has failed to show that his claims that are not “plainly meritless.” Rhines, 544 

U.S. at 277. With respect to Petitioner’s sentencing claim, the Michigan Supreme Court only 

made its holding in Lockridge applicable to cases still “pending on direct review.” Id. at 25-26. 

Further compounding the problem for Petitioner is the fact that this Court is not bound by the 

Michigan Supreme Court’s interpretation of Alleyne v. United States, 133 S.Ct. 2151 (2013), the 

case on which Lockridge holding is based. At least one other Judge in this District has found 

that Alleyne does not apply to the Michigan Sentencing Guidelines. See Perez v. Rivard, 2015 

U.S. Dist. LEXIS 74211, 29-30 (E.D. Mich. June 9, 2015) (Judge Battani). In any event, the law 

in the Sixth Circuit is that Alleyne does not apply retroactively. In re Mazzio, 756 F.3d 487, 491 

(6th Cir. 2014) (“Alleyne does not apply retroactively to cases on collateral review.”). Therefore 

Petitioner has not demonstrated that his sentencing claim is not plainly meritless. 

 With respect to Petitioner’s unexhausted ineffective assistance of counsel claims, 

although Petitioner has alluded to newly discovered evidence, he has not provided the Court with 

anything other than conclusory allegations in support of his claims. This is insufficient to meet 

his burden of showing that his claims are not “plainly meritless.” Petitioner has therefore not 

demonstrated that he is entitled to a stay. 

III. 

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 Petitioner has also filed two motions seeking discovery in the form of DNA testing. ECF 

Nos. 2, 3. Habeas Rule 6(a) permits district courts to authorize discovery in habeas corpus 

proceedings “if and to the extent that, the judge in the exercise of his discretion and for good 

cause shown grants leave to do so.” 2254 Habeas Rule 6(a). However, “habeas petitioners have 

no right to automatic discovery.” Stanford v. Parker, 266 F.3d 442, 460 (6th Cir. 2001). “Rule 6 

embodies the principle that a court must provide discovery in a habeas proceeding only ‘where 

specific allegations before the court show reason to believe that the petitioner may, if the facts 

are fully developed, be able to demonstrate that he is . . . entitled to relief.’” Williams v. Bagley, 

380 F.3d 932, 975 (6th Cir. 2004), quoting Bracy v. Gramley, 520 U.S. 899, 908-09 (1997). 

In the present matter, Respondent’s answer and the Rule 5 materials have not yet been 

filed, and the Court is not persuaded that discovery and DNA testing are necessary at this time. 

Petitioner’s discovery motions will therefore be denied without prejudice. Petitioner is free to 

refile his motions after Respondent files an answer and the Rule 5 materials. 

IV.

 Accordingly, it is ORDERED that Petitioner’s motion to hold Federal habeas in 

abeyance, ECF No. 7, is DENIED. 

 It is further ORDERED that Petitioner’s pending motions for discovery, ECF Nos. 2, 3, 

are DENIED without prejudice. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: December 11, 2015 

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PROOF 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 December 11, 2015. 

 s/Michael A. Sian 

 MICHAEL A. SIAN, Case Manager 

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