UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

Kahri Smith, 

 Petitioner, 

v. 

Bonita Hoffner, 

 Respondent. 

 /

Case Number: 15-cv-11648 

Hon. Judith E. Levy 

Mag. Judge Anthony P. Patti 

OPINION AND ORDER DENYING PETITIONER’S MOTION TO 

STAY PROCEEDINGS [5], DISMISSING PETITION FOR WRIT 

OF HABEAS CORPUS WITHOUT PREJUDICE, 

AND DENYING CERTIFICATE OF APPEALABILITY

I. Introduction

 Michigan state prisoner Kahri Smith has filed a petition for a writ 

of habeas corpus pursuant to 28 U.S.C. § 2254, asserting he is being 

held in violation of his constitutional rights. (Dkt. 1) Petitioner was 

convicted in Wayne County Circuit Court of second-degree murder, 

Mich. Comp. Laws § 750.317. Before the Court is Petitioner’s motion 

to stay these proceedings so that he can raise unexhausted claims in the 

state courts. (Dkt. 5). For the reasons set forth below, the Court will 

deny Petitioner’s motion, dismiss the petition without prejudice, and 

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deny a certificate of appealability. 

II. Background 

 Petitioner was convicted by a jury of second-degree murder in 

connection with the beating death of his uncle. The trial court 

sentenced him to twenty to forty years’ imprisonment. Petitioner filed 

an application for leave to appeal in the Michigan Court of Appeals, 

raising claims that the trial court denied him his right to present a 

defense and that the trial court incorrectly scored several offense 

variables. The Michigan Court of Appeals denied Petitioner’s 

application for leave to appeal “for lack of merit in the grounds 

presented.” People v. Smith, No. 309407 (Mich. Ct. App. Nov. 28, 

2012). Petitioner then filed an application for leave to appeal in the 

Michigan Supreme Court. The Michigan Supreme Court, in lieu of 

granting leave to appeal, remanded the case to the Michigan Court of 

Appeals for consideration as on leave granted. People v Smith, 494 

Mich. 874 (2013). 

 On remand, the Michigan Court of Appeals affirmed Petitioner’s 

conviction, but vacated the sentence and remanded for resentencing. 

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People v. Smith, No. 309407, 2013 WL 6670897 (Mich. Ct. App. Dec. 17, 

2013). Petitioner filed an application for leave to appeal in the 

Michigan Supreme Court, raising the claim that he was denied his right 

to present a defense. The Michigan Supreme Court denied leave to 

appeal. People v. Smith, 496 Mich. 859, 847 N.W.2d 513 (Mich. June 

24, 2014). 

 On July 30, 2014, the trial court resentenced Petitioner to the 

same sentence of twenty to forty years’ imprisonment. On August 22, 

2014, Petitioner filed a claim of appeal in the Michigan Court of 

Appeals. On January 26, 2015, the Michigan Court of Appeals 

dismissed the appeal because the parties entered into a stipulation 

agreeing to the dismissal. People v. Smith, No. 323309 (Mich. Ct. App. 

Jan. 26, 2015). 

 On April 24, 2015, Petitioner filed the pending habeas corpus 

petition. He claims that the trial court violated his right to present a 

defense when it did not allow him to present evidence of self-defense. 

He then filed a motion to stay the habeas proceeding. 

 On September 15, 2015, Petitioner filed a motion for relief from 

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judgment in the trial court. The trial court denied the motion on 

November 19, 2015. People v. Smith, No. 11-000477-01-FC. 

III. Discussion 

 Petitioner seeks a stay so that he may present unexhausted claims 

of ineffective assistance of trial and appellate counsel in state court. A 

prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. § 

2254 must first exhaust all state remedies. See O’Sullivan v. Boerckel, 

526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the state courts 

one full opportunity to resolve any constitutional issues by invoking one 

complete round of the State’s established appellate review process.”). 

To satisfy this requirement, the claims must be “fairly presented” to the 

state courts; i.e., the prisoner must have asserted both the factual and 

legal bases for the claims in the state courts. McMeans v. Brigano, 228 

F.3d 674, 681 (6th Cir. 2000). While the exhaustion requirement is not 

jurisdictional, a “strong presumption” exists that a petitioner must 

exhaust available state remedies before seeking federal habeas review. 

Granberry v. Greer, 481 U.S. 129, 131 (1987). The burden is on the 

petitioner to prove exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 

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1994). 

 After filing his habeas petition, which raises only one exhausted 

claim, Petitioner filed a motion for relief from judgment in the trial 

court, raising his unexhausted ineffective assistance of counsel claims. 

A prisoner is required to comply with the exhaustion requirement as 

long as there is still a state-court procedure available for him to do so. 

See Adams v. Holland, 330 F.3d 398, 401 (6th Cir. 2003). In this case, 

a procedure is available for Petitioner to complete exhaustion of these 

claims. He already has filed a motion for relief from judgment in the 

Wayne County Circuit Court under Michigan Court Rule 6.502. That 

motion was denied on November 19, 2015. Petitioner has six months 

to file an application for leave to appeal in the Michigan Court of 

Appeals. M.C.R. 7.205(G). If the Michigan Court of Appeals denies 

leave to appeal, Petitioner may seek leave to appeal in the Michigan 

Supreme Court. 

 A federal district court has discretion to stay a habeas petition to 

allow a petitioner to present unexhausted claims to the state courts in 

the first instance and then return to federal court on a perfected 

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petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). 

However, stay and abeyance is available only in “limited 

circumstances,” such as when the one-year statute of limitations 

applicable to federal habeas actions poses a concern, and when the 

petitioner demonstrates “good cause” for the failure to exhaust state 

court remedies and the unexhausted claims are not “plainly meritless.” 

Id. at 277. 

 Petitioner has not shown the need for a stay. The one-year 

statute of limitations applicable to federal habeas actions, 28 U.S.C. § 

2244(d), does not begin to run until ninety days after the conclusion of 

direct appeal. Gonzalez v. Thaler, ___U.S. _____, 132 S. Ct. 641, 653 

(2012) (stating that a conviction becomes final when the time for filing a 

certiorari petition expires). The Michigan Supreme Court denied leave 

to appeal on June 24, 2014, and Petitioner had 90 days from that date, 

until September 22, 2014, to seek a writ of certiorari with the United 

States Supreme Court. The one year limitations period commenced the 

next day, September 23, 2014. Approximately five months of the 

one-year limitations period applicable to habeas corpus petitions 

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remained when Petitioner filed his federal habeas corpus petition on 

April 24, 2015. 

 While the time in which this case has been pending in federal 

court is not statutorily tolled, see Duncan v. Walker, 533 U.S. 167, 

181-82 (2001) (a federal habeas petition is not an “application for State 

post-conviction or other collateral review” within the meaning of 28 

U.S.C. § 2244(d)(2) so as to statutorily toll the limitations period), such 

time may be equitably tolled. See, e.g., Johnson v. Warren, 344 F. 

Supp. 2d 1081, 1088-89 (E.D. Mich. 2004). The limitations period will 

also be tolled during the time in which any properly filed post-conviction 

or collateral actions are pending in the state courts. See 28 U.S.C. § 

2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-221 (2002). Assuming 

that Petitioner files a timely application for leave to appeal in the 

Michigan Court of Appeals and then, if that application is denied, a 

timely application for leave to appeal in the Michigan Supreme Court, 

he will have five months to re-file this petition after the conclusion of 

proceedings in the state trial and appellate courts. Thus, Petitioner 

has not shown the need for a stay and a dismissal of the habeas petition 

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without prejudice is appropriate. 

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IV. Conclusion 

 Accordingly, Petitioner’s Motion to Stay Proceedings (Dkt. 5) is 

DENIED, and his petition for a writ of habeas corpus is DISMISSED 

WITHOUT PREJUDICE. If Petitioner wishes to proceed on the 

exhausted claim and abandon his unexhausted claims, he may move to 

reopen these proceedings within thirty days from the date of the Order. 

 Before Petitioner may appeal the Court’s decision, a certificate of 

appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R.App. P. 

22(b). A certificate of appealability may issue “only if the applicant has 

made a substantial showing of the denial of a constitutional right.” 28 

U.S.C. § 2253(c)(2). When a federal court denies a habeas claim on 

procedural grounds without addressing the merits, a certificate of 

appealability should issue only if it is shown that “jurists of reason 

would find it debatable whether the petition states a valid claim of the 

denial of a constitutional right, and that jurists of reason would find it 

debatable whether the district court was correct in its procedural 

ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Because 

reasonable jurists could not debate the correctness of the Court's 

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procedural ruling, a certificate of appealability is DENIED. 

 IT IS SO ORDERED. 

Dated: December 8, 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 December 8, 2015. 

s/Felicia M. Moses 

FELICIA M. MOSES 

Case Manager 

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