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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

REGINALD WILLIAMS,

Petitioner, Civil No. 2:08-CV-14744

 HONORABLE GEORGE CARAM STEEH

v. UNITED STATES DISTRICT JUDGE

HUGH WOLFENBARGER,

Respondent,

___________________________/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT

OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE.

Reginald Williams, (“Petitioner”), presently confined at the Macomb

Correctional Facility in New Haven, Michigan, has filed a pro se petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his

convictions for armed robbery, M.C.L.A. 750.529; carjacking, M.C.LA. 750.529a;

retaining a financial transaction device without consent, M.C.L.A. 750.157n(1);

and being a third felony habitual offender, M.C.L.A. 769.11. Petitioner has now

filed a motion to hold the petition in abeyance to permit him to file a postconviction motion in the state courts to raise additional claims that are not

included in the current petition. For the reasons stated below, the Court will hold

the petition in abeyance and will stay the proceedings under the terms outlined

below in the opinion to permit petitioner to return to the state courts to exhaust his

additional claims, failing which the petition shall be dismissed without prejudice. 
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The Court will also administratively close the case.

I. Background

Petitioner was convicted of the above offenses following a bench trial in the

Wayne County Circuit Court. Petitioner’s conviction was affirmed on appeal.

People v. Williams, 275 Mich.App. 194, 737 N.W.2d 797 (2007); lv. den. 480

Mich. 920, 740 N.W.2d 254 (2007). 

On November 10, 2008, petitioner filed a petition for writ of habeas corpus,

in which he seeks habeas relief on the two grounds that he raised in the Michigan

courts on his direct appeal. 

Petitioner has now filed a motion to hold the habeas petition in abeyance

so that he can return to the Wayne County Circuit Court to present new claims in

a post-conviction motion for relief from judgment. 

II. Discussion

A federal district court has the authority to abate or dismiss a federal

habeas action pending resolution of state post-conviction proceedings. Brewer v.

Johnson, 139 F. 3d 491, 493 (5th Cir. 1998). However, in order to stay federal

proceedings and hold a habeas petition in abeyance pending resolution of state

court proceedings, there must be exceptional or unusual circumstances. Sitto v.

Bock, 207 F. Supp. 2d 668, 676 (E.D. Mich. 2002); Hudson v. Martin, 68 F. Supp.

2d 798, 800 (E.D. Mich. 1999). Federal district courts are authorized to stay fully

exhausted federal habeas petitions pending the exhaustion of other claims.
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Anthony v. Cambra, 236 F. 3d 568, 575 (9th Cir. 2000); See also Moritz v. Lafler,

No. 2008 WL 783751 (E.D. Mich. March 19, 2008); Tran v. Bell, 145 F. Supp. 2d

939, 941-42 (W.D. Tenn. 2001); Hill v. Mitchell, 30 F. Supp. 2d 997, 1000 (S.D.

Ohio 1998). 

The Court will grant petitioner’s motion to hold the petition in abeyance

while he returns to the state courts to exhaust additional claims. In this case, the

outright dismissal of the petition, albeit without prejudice, might result in

preclusion of consideration of the 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, as was the case here, 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, in

fact, has suggested that a habeas petitioner who is concerned about the possible

effects of his or her state post-conviction filings on the AEDPA’s statute of

limitations could file a “protective” petition in federal court, as petitioner has

apparently done here, and then ask for the petition to be held in abeyance

pending the exhaustion of state post-conviction remedies. See Pace v.

DiGuglielmo, 125 S. Ct. 1807, 1813-14 (2005)(citing Rhines v. Weber, 125 S. Ct.

1528, 1531 (2005)). 
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However, even where a district court determines that a stay is appropriate

pending exhaustion of state court remedies, the district court “should place

reasonable time limits on a petitioner’s trip to state court and back.” Rhines v.

Weber, 125 S. Ct. at 1535. Therefore, to ensure that there are no delays by

petitioner in exhausting his state court remedies, this Court will impose upon

petitioner time limits within which he must proceed with his state court postconviction proceedings. See Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002). 

In order to avoid petitioner being time-barred from seeking habeas relief

following his return to the state courts, the Court will hold the present petition in

abeyance for 60 days and will allow petitioner to initiate post-conviction

proceedings in the state courts, in which case the Court will hold the present

petition in abeyance. This tolling is conditioned upon petitioner initiating his state

post-conviction remedies within sixty days of receiving this Court’s order and

returning to federal court within sixty days of completing the exhaustion of his

state court post-conviction remedies. Id.; Geeter v. Bouchard, 293 F. Supp. 2d

773, 775 (E.D. Mich. 2003).

Petitioner’s method of properly 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 Mikko v. Davis, 342 F. Supp. 2d 643, 646

(E.D. Mich. 2004). A trial court is authorized to appoint counsel for petitioner,

seek a response from the prosecutor, expand the record, permit oral argument,
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and hold an evidentiary hearing. M.C.R. 6.505-6.507, 6.508 (B) and (C). Denial

of a motion for relief from judgment is reviewable by the Michigan Court of

Appeals and the Michigan Supreme Court upon the filing of an application for

leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. Nasr v. Stegall, 978

F. Supp. 714, 717 (E.D. Mich. 1997). Petitioner, in fact, is required to appeal the

denial of his post-conviction motion to the Michigan Court of Appeals and the

Michigan Supreme Court in order to properly exhaust the claims that he has

raised in his post-conviction motion. See e.g. Mohn v. Bock, 208 F. Supp. 2d 796,

800 (E.D. Mich. 2002). 

III. ORDER

Accordingly, it is ORDERED that petitioner may file a motion for relief from

judgment with the state court within sixty (60) days of receipt of this Court’s

order. If petitioner fails to file a motion for relief from judgment with the state

courts by that date, the Court will dismiss the present petition without prejudice.

If petitioner files a motion for relief from judgment, he shall notify this Court

that such motion papers have been filed in state court. The case shall then be

held in abeyance pending the petitioner's exhaustion of the claims. The petitioner

shall re-file a habeas petition within 60 days after the conclusion of the state court

post-conviction proceedings. Petitioner is free at that time to file an amended

habeas petition which contains any newly exhausted claims.

To avoid administrative difficulties, the Court ORDERS the Clerk of Court
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to CLOSE this case for statistical purposes only. Nothing in this order or in the

related docket entry shall be considered a dismissal or disposition of this matter.

See Sitto v. Bock, 207 F. Supp. 2d at 677. 

Dated: December 16, 2008

S/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

December 16, 2008, by electronic and/or ordinary mail.

S/Josephine Chaffee

Deputy Clerk