UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GREGORY HAMILTON,

Petitioner, Case Number 08-13960

v. Honorable David M. Lawson

NICK J. LUDWICK, Warden,

Respondent.

______________________________________/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF

HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE

The petitioner, Gregory Hamilton, presently confined at the St. Louis Correctional Facility

in St. Louis, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C.

§ 2254. The petitioner was convicted of first-degree home invasion, carjacking, and interfering with

electronic communications in Oakland County, Michigan and sentenced to a term of twenty to sixty

years. The petitioner has now filed a motion to hold his petition in abeyance while he litigates eight

new claims that he has not raised in his initial petition on a post-conviction motion in state courts.

For the reasons stated below, the Court will hold the petition in abeyance and close the case for

administrative purposes.

I.

On November 14, 2006, the petitioner was convicted of first-degree home invasion,

carjacking, and interfering with electronic communications following the jury trial in Oakland

county circuit court. The Michigan Court of Appeals affirmed the petitioner’s convictions in an

unpublished decision, People v. Hamilton, No. 275479 (Mich. Ct. App. Jan. 10, 2008), and on April

28, 2008, the Michigan Supreme Court denied leave to appeal. See People v. Hamilton, 480 Mich.

1191, 747 N.W.2d 306 (2008) (table).

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On September 15, 2008, the petitioner filed an application for habeas relief, in which he

seeks relief on the one claim that he raised in his direct appeal with the Michigan courts. The

petitioner has now filed a motion hold the habeas petition in abeyance so that he can return to the

Oakland County Circuit Court to present nine new claims in a post-conviction motion for relief from

judgment. The petitioner contends that these issues were not raised during his direct appeal due to

ineffective assistance of his appellate counsel.

II.

The doctrine of exhaustion of state remedies requires state prisoners to “fairly present” their

claims as federal constitutional issues in the state courts before raising those claims in a federal

habeas corpus petition. See 28 U.S.C. §§ 2254(b)(1)(A), (c); O’Sullivan v. Boerckel, 526 U.S. 838,

844 (1999); McMeans v. Brigano, 228 F.3d 674, 680-81 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155,

160 (6th Cir. 1994). The exhaustion requirement is satisfied if a prisoner invokes one complete

round of the state’s established appellate review process, including a petition for discretionary

review to a state supreme court. O’Sullivan, 526 U.S. at 845. A prisoner “‘fairly presents’ his claim

to the state courts by citing a provision of the Constitution, federal decisions using constitutional

analysis, or state decisions employing constitutional analysis in similar fact patterns.” Levine v.

Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993); see also Prather v. Rees, 822 F.2d 1418, 1420 (6th Cir.

1987) (holding that “[o]rdinarily, the state courts must have had the opportunity to pass on

defendant’s claims of constitutional violations”). A Michigan petitioner must present each ground

to both Michigan appellate courts before seeking federal habeas corpus relief. See Mohn v. Bock,

208 F. Supp. 2d 796, 800 (E.D. Mich. 2002); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.

1990). The petitioner bears the burden of showing that state court remedies have been exhausted.

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Rust, 17 F.3d at 160. 

The Michigan Court Rules provide a process by which the petitioner may raise his

unexhausted claim. The petitioner may file a motion for relief from judgment pursuant to Michigan

Court Rule 6.500 et seq., which allows the trial court to appoint counsel, seek a response from the

prosecutor, expand the record, permit oral argument, and conduct an evidentiary hearing on the

petitioner’s claim. The petitioner may appeal the trial court’s disposition of his motion for relief

from judgment to the Michigan Court of Appeals and Michigan Supreme Court, and he may

thereafter file a petition for writ of certiorari in the United States Supreme Court. To obtain relief

in state court, he will have to show cause for failing to raise his unexhausted claim on direct review

and resulting prejudice or a significant possibility of innocence. See Mich. Ct. R. 6.508(D)(3).

However, he would have to make a similar showing here if the Court concluded that there was no

state remedy to exhaust. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Hannah v. Conley, 49

F.3d 1193, 1195-96 & n.3 (6th Cir. 1995); Rust, 17 F.3d at 160. The petitioner’s unexhausted claim

should be addressed to, and considered by, the state courts in the first instance so the state court will

have an opportunity to decide whether he has established “cause” for his failure to present this claim

on direct review.

Although the petitioner has raised his habeas claims in the trial court, the Michigan Court

of Appeals and in the Michigan Supreme Court, he conceded that his new claims have never been

raised at the state-court level. The petitioner wants to proceed with the process by which he could

exhaust his claims and prepare them for this Court’s review. His motion in this Court requests that

his habeas petition be stayed in the meantime rather than dismissed.

A dismissal of the action at this time could result in a subsequent habeas petition being

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barred by the one-year statute of limitations set forth in 28 U.S.C. § 2244(d). A federal district court

has the authority to abate or dismiss a federal habeas action pending resolution of state postconviction proceedings, provided there is good cause for the failure to exhaust claims and reasonable

time limits are imposed. Rhines v. Weber, 544 U.S. 269, 277 (2005). In this case, the Court finds

dismissal of the petition may render subsequent petitions in this Court untimely. See 28 U.S.C. §

2244(d)(1). Mr. Hamilton was sentenced on December 5, 2006, and his conviction became final

when the Michigan Supreme Court denied leave to appeal on April 28, 2008. Mr. Hamilton’s

petition was filed with the Court on September 15, 2008, although it remains unclear when he signed

it. See Neal v. Bock, 137 F. Supp. 2d 879, 882 n.1 (E.D. Mich. 2001) (holding that under the prison

mailbox rule, a prisoner’s habeas petition is filed on the date that it was signed and dated). The

Supreme Court has held that the filing of a federal habeas corpus petition does not suspend the

running of the one-year limitations period under 28 U.S.C. § 2244(d)(2). See Duncan v. Walker, 533

U.S. 167, 181-82 (2001). Therefore, Mr. Hamilton would be in danger of exceeding the one-year

period under 28 U.S.C. § 2244(d)(1)(A) if his petition were dismissed and he were to refile it once

again upon adjudication of his new claims in state courts.

The Supreme Court’s decision in Duncan did not prevent district courts from “retain[ing]

jurisdiction over a meritorious claim and stay[ing] proceedings pending the complete exhaustion of

state remedies,” or from “deeming the limitations period tolled for [a habeas] petition as a matter

of equity.” Id. at 182-83 (Stevens, J., concurring). The Sixth Circuit has advised that it is preferable

for a district court to dismiss the unexhausted claims, retain jurisdiction over the exhausted claims,

and stay proceedings pending exhaustion where to do otherwise would jeopardize the timeliness of

a subsequent petition. Griffin v. Rogers, 308 F.3d 647, 652 & n.1 (6th Cir. 2002); see also Palmer

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v. Carlton, 276 F.3d 777, 780-81 (6th Cir. 2002) (finding “eminently reasonable” district court’s

holding dismissing unexhausted claims in habeas petition and staying proceedings on the remaining

claims pending exhaustion of state court remedies). 

The Supreme Court has instructed that stay and abeyance is “available only in limited

circumstances,” such as “when the district court determines there was good cause for the petitioner’s

failure to exhaust his claims first in state court,” the unexhausted claims are not “plainly meritless,”

and the petitioner has not “engage[d] in abusive litigation tactics or intentional delay.” Rhines, 544

U.S. at 277-78. The petitioner satisfies all of these requirements. The petitioner states that the

claims he seeks to add were not presented as federal constitutional claims in the state courts because

his appellate attorney was ineffective. The alleged ineffectiveness of appellate counsel constitutes

“good cause” to justify holding a habeas petition in abeyance during the petitioner’s return to state

court. Rhines v. Weber, 408 F. Supp. 2d 844, 848-49 (D.S.D. 2005); see also Szymanski v. Renico,

No. 05-10241, 2007 WL 1760878, at * 2 (E.D. Mich. June 15, 2007). Moreover, the petitioner’s

new claims – some of which challenge sufficiency of evidence, violations of the Sixth Amendment

right to impartial jury, prosecutorial misconduct, etc. – are not plainly meritless, and the petitioner

does not appear to be engaged in abusive litigation tactics or intentional delay. 

III.

To avoid injustice, the Court will stay further proceedings in the current action until state

courts adjudicate the petitioner’s motion under M.C.R. 5.600 et seq. 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, 544

U.S. at 278. Therefore, to ensure that there are no delays by the petitioner in exhausting his state

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court remedies, this Court will impose upon the petitioner time limits within which he must proceed

with his state court post-conviction proceedings. See Palmer, 276 F. 3d at 781. “If the conditions

of the stay are not met, the stay may later be vacated nunc pro tunc as of the date the stay was

entered, and the petition may be dismissed.” Ibid. (internal quotation omitted).

Accordingly, it is ORDERED that the petitioner’s motion to hold habeas petition in

abeyance [dkt # 7] is GRANTED.

It is further ORDERED that the consideration of the petitioner’s habeas corpus petition [dkt

# 1] is HELD IN ABEYANCE pending the exhaustion of the petitioner’s new claims in Michigan

state courts. The petitioner shall file an amended petition in this Court within twenty-eight (28)

days after the conclusion of the state court proceedings. If the petitioner files an amended petition,

the respondent shall file an answer addressing the allegations in the petition in accordance with Rule

5 of the Rules Governing Section 2254 Cases in the United States District Courts within twenty-one

(21) days thereafter.

It is further ORDERED that the respondent’s motion to stay the order requiring responsive

pleadings by March 31, 2009 pending resolution of the petitioner’s motion to hold the petition in

abeyance [dkt # 8] is DENIED as moot.

It is further ORDERED that to avoid administrative difficulties the Clerk of Court should

CLOSE this case for statistical purposes only. Nothing in this order or in the related docket entry

shall be considered a dismissal of this matter. 

It is further ORDERED that upon receipt of a motion to reinstate the habeas petition

following exhaustion of state remedies, the Court may order the Clerk to reopen this case for

statistical purposes.

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s/David M. Lawson

DAVID M. LAWSON

United States District Judge

Dated: March 31, 2009

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on March 31, 2009.

s/Lisa M. Ware

LISA M. WARE

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