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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTONIO PEREZ-CHICA,

Petitioner, Civil Action No.

08-CV-14782 

vs.

HON. BERNARD A. FRIEDMAN

KENNETH McKEE,

Respondent.

_________________________/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF

HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE

Antonio Perez-Chica, (“Petitioner”), confined at the Bellamy Creek Correctional

Facility in Ionia, Michigan, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254. In his application, filed pro se, petitioner challenges his convictions for possession with intent

to deliver 1,000 or more grams of cocaine, M.C.L.A. 333.7401(2)(a)(i); and conspiracy to possess

with intent to deliver 1,000 or more grams of cocaine, M.C.L.A. 750.157a; M.C.L.A.

333.7401(2)(a)(i). Petitioner has 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 additional claims that have

not been exhausted with the state courts and that are not included in his current habeas petition. For

the reasons stated below, the Court will hold the petition in abeyance and stay the proceedings under

the terms outlined in this opinion to permit petitioner to return to the state courts to exhaust his

additional claims. If this fails, the petition will be dismissed without prejudice. The Court will also

administratively close the case.

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 Under the prison mailbox rule, this Court assumes that Petitioner filed his habeas

petition on November 6, 2008, the date that it was signed and dated. See Neal v. Bock, 137 F.

Supp. 2d 879, 882, fn. 1 (E.D. Mich. 2001). 

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I. Background

Petitioner was convicted of the above offenses following a jury trial in the Macomb

County Circuit Court. Petitioner’s conviction was affirmed on appeal. People v. Perez-Chica, No.

276153 (Mich. Ct. App. March 25, 2008); lv. den. 481 Mich. 917, 750 N.W.2d 209 (2008);

reconsideration den. 482 Mich. 978, 754 N.W.2d 888 (2008). 

On November 6, 2008, Petitioner filed this application for writ of habeas corpus, in

which he seeks habeas relief on the three claims that he raised in the Michigan appellate courts on

his direct appeal.1

 

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

can return to the state courts to raise additional claims that have not been exhausted with the state

courts.

II. Discussion

A federal district court has authority to abate or dismiss a federal habeas action

pending resolution of state post-conviction proceedings. See Brewer v. Johnson, 139 F. 3d 491, 493

(5th Cir. 1998). However, 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). A federal district court is authorized to stay fully exhausted federal habeas

petitions pending the exhaustion of other claims in the state courts. See Anthony v. Cambra, 236 F.

3d 568, 575 (9th Cir. 2000); Moritz v. Lafler, No. 2008 WL 783751 (E.D. Mich. March 19, 2008);

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Williams v. Trombley, No. 2006 WL 36755, at * 2 (E.D. Mich. January 4, 2006); 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 his petition in abeyance while he

returns to the state courts to exhaust his additional claims. 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, 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 United States Supreme Court has 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, as petitioner has 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, 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 states in his motion that the new claims he wishes to exhaust in the state

courts were not presented as federal constitutional claims in state courts because his appellate

attorney was ineffective. On remand from the United States Supreme Court, the federal district

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court in Rhines held that the ineffective assistance of post-conviction counsel constituted “good

cause” for a habeas petitioner’s failure to exhaust in the state court proceedings, so as to justify

holding the petition in abeyance while the petitioner returned to the state courts to exhaust. See

Rhines v. Weber, 408 F. Supp. 844, 848-49 (D.S.D. 2005). A number of judges in this district

likewise hold that an appellate attorney’s alleged ineffectiveness constitutes “good cause” to justify

holding a habeas petition in abeyance pending the petitioner’s return to the state courts. See Taylor

v. Prelesnik, No. 2008 WL 3853300, at *3 (E.D. Mich. August 18, 2008); Wright v. Trombley, No.

2007 WL 4181316, at **2-3 (E.D.Mich. November 27, 2007); Lanton v. Lafler, No. 2007 WL

2780552, at *2 (E.D. Mich. September 24, 2007); Hayes v. Prelesnik, No. 2007 WL 1834749, at *1

(E.D. Mich. June 25, 2007); Szymanski v. Renico, No. 2007 WL 1760878, at *2 (E.D. Mich. June

15, 2007); Chambers v. White, 2006 WL 276738, at *3 (E.D. Mich. February 2, 2006); Boyd v.

Jones, 2005 WL 2656639, at *4 (E.D. Mich. October 14, 2005). In addition, petitioner’s claims do

not appear plainly meritless. Finally, it does not appear that petitioner engaged in “intentionally

dilatory tactics.” See Rhines, 544 U.S. at 278.

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.” Id. 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 post-conviction

proceedings in the state courts. This tolling is conditioned upon petitioner initiating his state postconviction remedies within sixty days of receiving this Court’s order and returning to federal court

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within sixty days of completing the exhaustion of state court post-conviction remedies. See

Hargrove, 300 F. 3d at 721; Geeter v. Bouchard, 293 F. Supp. 2d 773, 775 (E.D. Mich. 2003).

III. ORDER

Accordingly, 

IT IS ORDERED that petitioner may initiate post-conviction proceedings in the state

court within sixty days of receipt of this Court’s order. If petitioner fails to do so, the Court will

dismiss the present petition without prejudice. If petitioner does initiate post-conviction proceedings

in the state court, he shall notify this Court that such proceedings have been commenced. This

matter will then be held in abeyance pending the petitioner’s exhaustion of the claims. Petitioner

shall re-file a habeas petition within sixty 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 newly

exhausted claims.

IT IS FURTHER ORDERED that the Clerk of Court shall close this case for

statistical purposes only in order to avoid administrative difficulties. 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.

S/Bernard A. Friedman_________

Dated: February 5, 2009____ BERNARD A. FRIEDMAN

 Detroit, Michigan SENIOR UNITED STATES DISTRICT JUDGE

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