UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

 Ed Foster, a Michigan prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C. 

§ 2254. (R. 1.) Foster challenges his state-court conviction for felony-murder. The petition raises 

seven claims for relief. Now before the Court are Foster’s Motion to Amend/Supplement Ground 

One of Petition and Motion to Hold Petition in Abeyance. (R. 12, 13.) For the reasons set forth, 

the Court will grant the motion to amend/supplement in part, grant the motion to hold the petition 

in abeyance, establish conditions under which Foster must proceed, and administratively close the 

matter. 

I. 

Foster was convicted of felony-murder following a jury trial in Van Buren County Circuit 

Court and sentenced to life imprisonment without the possibility of parole. His conviction was 

affirmed on direct appeal by the Michigan Court of Appeals. People v. Foster, No. 301361, 2013 

WL 4033639 (Mich. Ct. App. Aug. 8, 2013). The Michigan Supreme Court then denied Foster’s 

application for leave to appeal. People v. Foster, 496 Mich. 855 (Mich. 2014). 

ED FOSTER, 

 Petitioner, 

 

v. 

 

THOMAS WINN, 

 Respondent. 

Case No. 2:15-CV-12265 

Honorable Laurie J. Michelson 

Magistrate Judge Michael J. Hluchaniuk 

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 

PETITONER’S MOTION TO AMEND/SUPPLEMENT GROUND ONE OF 

PETITION [12]; GRANTING PETITIONER’S MOTION TO HOLD PETITION IN 

ABEYANCE [13]; AND ADMINISTRATIVELY CLOSING CASE 
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On June 16, 2015, Foster filed the pending habeas corpus petition. 

II. 

A. Motion to Amend/Supplement 

Foster asks the court to allow him to amend or supplement ground one of his petition 

asserting that the prosecutor knowingly presented perjured testimony of a key witness, Keith 

Nickerson. Federal Rule of Civil Procedure 15 is applicable to habeas proceedings. Mayle v. Felix, 

545 U.S. 64, 655 (2005). Pursuant to this Rule the Court “should freely give leave when justice so 

requires.” Fed. R. Civ. P. 15(a)(2). In deciding whether to grant a motion to amend the petition, 

the Court considers bad faith, undue delay, prejudice to the opposing party, futility of the 

amendment, and whether the petitioner previously amended his pleadings. See, e.g., Foman v. 

Davis, 371 U.S. 178 (1962); Coe v. Bell, 161 F.3d 320, 341 (6th Cir. 1998). 

Foster first seeks to amend his petition to provide additional support and argument for the 

Keith Nickerson perjured testimony claim. This request does not appear to be made in bad faith 

and this is Foster’s first motion to amend his pleadings. Futility is not an issue because Foster does 

not seek to add a new claim for relief, just to supplement his existing argument. And even though 

Winn has filed a response and a Rule 5 filing, he makes no claim of prejudice. The Court 

recognizes that Foster’s motion to amend comes twenty-one months after he filed his petition, but 

mere undue delay alone is insufficient to deny a motion to amend and again, Respondent does not 

claim prejudice. Coe, 161 F.3d at 342. For these reasons, and because Winn does not oppose it, 

the Court will grant this portion of Foster’s motion. 

Foster also seeks to supplement the petition with the affidavit of Tommie Jeffries, which, 

he argues, advances his theory that there was a “common theme” of police coercing witnesses to 

testify falsely. (R.12, PID 5744–45.) This affidavit was not presented to the state courts. “Although 
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state prisoners may sometimes submit new evidence in federal court, AEDPA’s statutory scheme 

is designed to strongly discourage them from doing so.” Cullen v. Pinholster, 563 U.S. 170, 186 

(2011). When the state courts have adjudicated a claim on the merits, a federal court’s review in 

habeas corpus proceedings is ordinarily limited to the record presented to the state courts. Id. at 

180; see also Holland v. Jackson, 542 U.S. 649, 652 (2004) (per curiam). Foster’s motion does not 

address the propriety of expanding the record in this case and a review of the Michigan Court of 

Appeals’ opinion suggests that they adjudicated Foster’s perjured testimony claim on the merits. 

(R. 9-31, PID 5101–5104.) Thus, as consideration of the proposed affidavit on habeas review is 

likely to be “categorically barred,” Shoemaker v. Jones, 600 F. App’x 979, 983 n.1 (6th Cir. 2015), 

the Court is going to deny Foster’s request to supplement the petition with Jeffries’ affidavit.1

 

B. Motion to Hold Petition in Abeyance 

Foster has filed a separate motion to hold the petition in abeyance to allow him to go back 

to state court to raise three additional claims: an ineffective-assistance-of-trial-counsel claim based 

upon a failure to investigate claims of coercive police interrogation tactics, an ineffectiveassistance-of-appellate-counsel claim, and another perjured testimony claim for several other 

witnesses besides Keith Nickerson. (R. 13.) 

A federal habeas petitioner must first exhaust all available remedies in state court, 

28 U.S.C. § 2254(b), but a federal court may stay a federal habeas corpus proceeding pending 

resolution of yet unexhausted state post-conviction proceedings. See Rhines v. Weber, 544 U.S. 

269, 276 (2005) (“District courts do ordinarily have authority to issue stays where such a stay 

would be a proper exercise of discretion.”) (citations omitted). In Rhines, the Supreme Court held 

 

1

 This denial is without prejudice should the propriety of the affidavit change following 

Foster’s exhaustion of state court remedies. 
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that a federal court may stay a petition for habeas corpus relief and hold further proceedings in 

abeyance while a petitioner exhausts unexhausted claims if outright dismissal of the petition would 

jeopardize the timeliness of a future petition, there is good cause for the petitioner’s failure to 

exhaust state court remedies, the unexhausted claims are not “plainly meritless,” and “there is no 

indication that the petitioner engaged in intentionally dilatory tactics.” Id. at 278. 

The Rhines decision, however, concerned a mixed habeas petition, that is, the petition 

presented claims that had been properly exhausted in state court and claims that had not. Id. at 

272–73. The petition at issue in this case raises only exhausted claims. Foster seeks a stay to allow 

him to present additional unexhausted claims in state court. While Rhines did not address this 

precise situation, this Court has held that such a stay may be appropriate. See Thomas v. Stoddard, 

89 F. Supp. 3d 937 (E.D. Mich. 2015); see also Armour v. MacLaren, No. 15-10753, 2015 WL 

9918195, at *1 (E.D. Mich. Dec. 4, 2015). Other federal courts have also allowed for stays of fully 

exhausted federal habeas corpus petitions pending the exhaustion of other claims in state court. 

See Mena v. Long, 813 F.3d 907, 910 (9th Cir. 2016) (holding that a district court has discretion 

to issue stays in cases of fully exhausted petitions); Doe v. Jones, 762 F.3d 1174, 1181 (10th Cir. 

2014) (a district court may consider a Rhines stay even in the case of an unmixed petition). 

 Where a habeas petition presents only exhausted claims, the Court may either adjudicate 

the exhausted claims while the petitioner simultaneously exhausts additional claims in state court 

or stay the petition while the petitioner seeks state-court collateral relief. This Court’s decision 

whether to grant a stay is informed “by the potential for parallel federal habeas and state postconviction proceedings and Rhines.” Thomas, 89 F. Supp. 3d at 942–43. The following factors 

inform a federal court’s decision to proceed in parallel with state post-conviction proceedings or 

instead hold a habeas corpus petition in abeyance: 
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(1) whether the exhausted claims in the petition are plainly meritorious while the 

unexhausted claims are plainly meritless (if so, proceeding to adjudicate the claims 

in the petition would avoid unnecessary expenditure of state court resources while 

still respecting the policies underlying exhaustion); 

(2) whether the unexhausted claims are potentially meritorious (if so, allowing the 

state court to adjudicate them first might save federal court resources, furthering 

the policies underlying exhaustion); 

(3) whether the unexhausted claims could be the bases for a viable second habeas 

petition (if so, staying until post-conviction proceedings are complete and then 

allowing petitioner to amend the pending petition would avoid the hurdles involved 

in filing a successive habeas petition); 

(4) whether the exhausted and unexhausted claims are legally or factually related 

(if so, it might be preferable for a federal court to delay ruling on an exhausted 

claim to avoid affecting the state court’s view of an unexhausted claim); 

(5) whether the habeas petitioner has good cause for seeking the stay (if not, the 

consequences of requiring a petitioner to proceed in two courts at once are less 

unfair to the petitioner); 

(6) the potential prejudice to the party opposing the habeas corpus petition; and 

(7) any other considerations relating to judicial economy and federal-state relations. 

Armour v. MacLaren, No. 15-10753, 2015 WL 9918195, at *1 (citing Thomas, 89 F.Supp.3d at 

941–43). 

 The Thomas factors weigh in favor of a stay. The Court cannot fully evaluate the merits of 

Foster’s unexhausted claims based upon the record presently before the Court, but they do not 

appear to be plainly meritless. Further, Foster raises constitutional claims upon which habeas relief 

may be granted. The claims are best first addressed and decided by the state courts, which may 

conduct an evidentiary hearing or otherwise allow Foster to supplement the record as allowed by 

state law. Foster also alleges good cause for failure to exhaust his state court remedies. He 

attempted to raise these claims in a pro per supplemental brief in the Michigan Court of Appeals, 

but the brief was not timely filed. Foster’s appellate counsel admitted in state court that the failure 
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to timely file the supplemental brief “was due to a clerical error, an oversight, and a mix-up at [the 

State Appellate Defender’s Office] for which [Foster] bears no responsibility.” (R.13, PID 5795–

96.) The Court anticipates no prejudice to Respondent in staying the petition. Lastly, if the Court 

denied the stay and decided the petition before completion of state-court collateral review, Foster 

would need to satisfy a very high burden to receive authorization to file a successive habeas 

petition under 28 U.S.C. § 2244(b)(2). The Court will therefore grant Foster’s motion to hold his 

petition in abeyance. 

III. 

It is hereby ordered that the Court GRANTS IN PART AND DENIES IN PART 

Petitioner’s motion to amend/supplement ground one of petition (R. 12.) The Court grants 

Petitioner’s request to supplement ground one with additional argument as set forth in pages 1–15 

of the motion. (R. 12, PID 5746–5762.) But the Court denies Petitioner’s motion to supplement 

the petition with the Jeffries affidavit. 

It is further ordered that the Court GRANTS Petitioner’s motion to hold petition in 

abeyance (R. 13.) Petitioner must file a motion for relief from judgment in state court within 60 

days of entry of this order. Within 60 days after the conclusion of the state-court post-conviction 

proceedings, Petitioner may move to amend his petition to add the 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 shall be considered a disposition of the petition. 

 SO ORDERED. 

 s/Laurie J. Michelson 

 LAURIE J. MICHELSON 

Dated: September 28, 2017 U.S. DISTRICT JUDGE 
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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 September 28, 2017. 

s/Keisha Jackson 

Case Manager