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 UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOURTHERN DIVISION

CHRISTOPHER MCCRAY,

 

Petitioner, Civil No. 2:08-CV-15166 

HONORABLE DENISE PAGE HOOD

v.

CINDI CURTIN,

Respondent.

____________________________________/

ORDER DENYING PETITIONER'S MOTION TO CONTINUE STAY [DKT. # 14]

Before the Court is Petitioner’s motion to extend the stay that was ordered by this

Court on July 31, 2009. For the reasons stated below, the motion will be denied.

In 2006, Petitioner was convicted in state court of one count of second-degree

murder, two counts of assault with intent to commit murder, and several lesser offenses.

Following a direct appeal in the state courts, Petitioner filed an application for a writ of

habeas corpus in this Court. The petition contained claims that Petitioner had not

exhausted in his state court appeal. Accordingly, Petitioner moved to hold the petition in

abeyance while he presented his new claims to the state courts in a post-conviction

proceeding. The stay was granted on July 31, 2009, and Petitioner promptly filed for postconviction relief in the state courts on September 8, 2009. On July 25, 2011, the Michigan

Supreme Court denied Petitioner's application for leave to appeal, completing the

exhaustion process for Petitioner's new claims. 

Petitioner alleges in his motion that sometime in July or August of 2011, the state

filed additional murder charges against him. Petitioner asserts that one of the surviving

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victims of the original crime died, resulting in the new charges. Petitioner alleges that if the

new charges result in a conviction, it will likely give rise to new claims for him to present in

the instant habeas action. 

Nothing prevents a state prisoner from challenging multiple convictions arising out

of the same state court in a single habeas petition. See Rule 2(e) of the Rules Governing

Section 2254 Cases in the United States District Court. Because of the exhaustion

requirement and the statute of limitations, however, the opportunity to challenge multiple

convictions in a single habeas petitioner rarely arises. Beyer v. Litscher, 306 F.3d 504, 508

(7th Cir. 2002). At least one Circuit Court has suggested that allowing such challenges in

a single petition is often times preferable. See Beyer, 306 F.3d at 508, ("When multiple

convictions are amenable to simultaneous challenge joinder might help a federal court

determine whether a particular claim or theory is moot, for if the sentences are concurrent

then an order rejecting a collateral attack on the longer sentence obviates anything else.")

In this case, however, there is no existent second conviction to challenge. Petitioner

is facing new murder charges, but he has not been convicted of those charges, and he can

only speculate that some unspecified constitutional error might occur at a trial that will not

be addressed by the state appellate courts. This case has already been stayed for a

considerable period of time, and to grant the open-ended request by Petitioner would

probably result in several more years of delay. At this point, Petitioner can only speculate

that additional habeas claims will arise.

Even assuming that Petitioner is convicted of a new offense, claims arising from that

conviction could be made the subject matter of a second habeas petition. Hardemon v.

Quarterman, 516 F.3d 272, 276 (5th Cir. Tex. 2008) (A state habeas petitioner is permitted,

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but not required, to challenge separate convictions in a single § 2254 petition). A potential

second habeas petition challenging a new conviction would not be subject to the

requirements of 28 U.S.C. 2244(b), which generally requires permission by the Court of

Appeals before a "second or successive" petition may be filed. See Magwood v. Patterson,

130 S. Ct. 2788 (2010).

Because it appears that Petitioner filed the present motion within 60 days of the

Michigan Supreme Court order denying his application for post-conviction review, he will

be given 60 days from the date of this order to file an amended petition and reopen this

action.

Accordingly, IT IS HEREBY ORDERED that Petitioner's motion is DENIED.

Petitioner will be given sixty (60) days to file an amended petition.

SO ORDERED.

Dated: December 21, 2011 S/Denise Page Hood 

Denise Page Hood

United States District Judge

I hereby certify that a copy of the foregoing document was served upon Christopher

McCray, 376263, Oaks Correctional Facility, 1500 Caberfae Highway, Manistee, MI 49660

counsel of record on December 21, 2011, by electronic and/or ordinary mail.

S/LaShawn R. Saulsberry 

Case Manager

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