UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT QUINTONE CRUMMIE,

Petitioner, Civil No. 2:15-CV-12723

HONORABLE VICTORIA A. ROBERTS

v. UNITED STATES DISTRICT JUDGE

CATHERINE BAUMAN,

Respondent,

____________________________________/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT

OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE.

Robert Quintone Crummie, (“Petitioner”), confined at the Alger Correctional

Facility in Munising, Michigan, filed a pro se petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254. Petitioner challenges his convictions for first-degree felony murder,

M.C.L.A. 750.316(1)(b); armed robbery, M.C.L.A. 750.529; two counts of assault with

intent to commit armed robbery, M.C.L.A. 750.89; and possession of a firearm in the

commission of a felony, M.C.L.A. 750.227b. Petitioner filed a motion to stay the habeas

corpus proceedings and hold the petition in abeyance to permit him to return to the state

courts to present claims that were not exhausted with the state courts. 

I. Background

Petitioner was convicted following a jury trial in the Wayne County Circuit Court. 

Petitioner’s conviction was affirmed on appeal. People v. Crummie, No. 311047, 2013

WL 5663228 (Mich. Ct. App. Oct. 17, 2013); lv. den. 495 Mich. 993; 845 N.W. 2d 117

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(2014). 

On July 24, 2015, Petitioner filed this application for writ of habeas corpus. 1

Petitioner seeks habeas relief on the following grounds: (1) The evidence was insufficient

to convict Petitioner of first-degree felony murder; the judge erred in denying the motion

for a judgment notwithstanding the verdict; (2) the judge erred in allowing an unavailable

witness’ testimony from the preliminary examination to be admitted at trial when the

prosecutor and police failed to exercise due diligence in finding the witness; the

admission of the testimony violated the Sixth Amendment right to confrontation; and (3)

the jury was not instructed on lesser included offenses; Petitioner’s Fourteenth

Amendment right to due process was violated.

II. Discussion

Petitioner seeks a stay because he wishes to properly federalize his second and

third claims and to raise additional claims which were not exhausted in state court. 

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); See also Foster v.

Withrow, 159 F. Supp. 2d 629, 638 (E.D. Mich. 2001). 

The Court grants Petitioner’s motion to hold the petition in abeyance while he

returns to the state courts to exhaust. The outright dismissal of the petition, albeit without

1

 Under the prison mailbox rule, this Court assumes that Petitioner filed his habeas petition on July 24,

2015, the date that it was signed and dated. See Towns v. U.S., 190 F. 3d 468, 469 (6th Cir. 1999).

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prejudice, might result in preclusion of consideration of Petitioner’s claims in this Court

due to the expiration of the one year statute of limitations contained in the Antiterrorism

and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d)(1). A common

circumstance calling for abating a habeas petition arises when the original petition was

timely filed, but a second, exhausted habeas petition would be time barred by the

AEDPA’s statute of limitations. See Hargrove v. Brigano, 300 F. 3d 717, 720-21 (6th Cir.

2002). 

The U.S. Supreme Court 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 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, if there is good

cause for failure to exhaust and the unexhausted claims are not “plainly meritless.”

Rhines, 544 U.S. at 278.

Petitioner’s claims do not appear to be “plainly meritless.” Wagner v Smith, 581 F.

3d 410, 419 (6th Cir. 2009). Further, Petitioner asserts that he did not federalize his

second and third claims due to the ineffective assistance of appellate counsel. Id., at 419,

nn. 4 and 5. Petitioner also has good cause for failing to raise an ineffective assistance of

appellate counsel claim earlier because state post-conviction review would be the first

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opportunity that he had to raise this claim in the Michigan courts. See Guilmette v.

Howes, 624 F. 3d 286, 291 (6th Cir. 2010). Finally, Petitioner did not engage in

“intentionally dilatory tactics.”

However, even where a district court determines that a stay is appropriate pending

exhaustion, 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 there are no delays by

Petitioner in exhausting state court remedies, this Court imposes time limits within which

Petitioner must proceed with his state court post-conviction proceedings. See Palmer v.

Carlton, 276 F. 3d 777, 781 (6th Cir. 2002). 

The Court holds the petition in abeyance to allow Petitioner to initiate postconviction proceedings in the state courts. This tolling is conditioned upon Petitioner

initiating his state post-conviction remedies within ninety days of receiving this Court’s

order and returning to federal court within ninety days of completing the exhaustion of 

state court post-conviction remedies. Hargrove, 300 F. 3d at 721. Petitioner’s method of

exhausting these claims in the state courts would be through filing a motion for relief

from judgment with the Wayne County Circuit Court under M.C.R. 6.502. See Wagner,

581 F. 3d at 419. 

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, using the same

case number that appears on this order. The amended petition and motion to re-open this

case must be filed within ninety (90) days of exhausting state remedies for Petitioner’s

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new claims. Failure to comply with this condition of the stay could result in the dismissal

of the habeas petition. Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir. 2014); cert. denied,

135 S. Ct. 1403 (2015).

The Court orders the Clerk of the Court to close this case for administrative

purposes. Nothing in this order shall be construed as an adjudication of Petitioner's

claims.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: January 25, 2016

The undersigned certifies that a copy of this

document was served on the attorneys of record

and Robert Quintone Crummie by electronic

means or U.S. Mail on January 25, 2016.

s/Linda Vertriest 

Deputy Clerk

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