UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

STEVEN ALLEN THOMASON, #376662,

Petitioner,

Civil No: 2:09-11012

Honorable Gerald E. Rosen

Magistrate Judge Donald A. Scheer

v.

NICK LUDWICK,

Respondent.

_________________________________/

OPINION AND ORDER DENYING RESPONDENT’S MOTION TO DISMISS &

DENYING PETITIONER’S MOTION FOR ACCELERATED RELIEF

Petitioner Steven Allen Thomason filed a pro se “petition for writ of habeas

corpus pursuant to 28 U.S.C. §2254. He was convicted in Oakland County Circuit Court

of second-degree criminal sexual conduct, Mich. Comp. Laws §750.520c(1)(a). Petitioner

is presently incarcerated at Mid-Michigan Correctional Facility in St. Louis, Michigan. He

was sentenced to four years nine months to fifteen years’ imprisonment. Pending before

the Court is Respondent’s motion to dismiss and Petitioner’s motion for accelerated relief.

For the reasons that follow, the Court will deny both motions. 

I. DISCUSSION

Motion to Dismiss

Respondent requests that the petition be dismissed on exhaustion grounds under

28 U.S.C. §2254(b)(1)(a) and pursuant to Rose v. Lundy, 455 U.S. 509, 522 (1982)

(generally, “mixed petitions” (i.e., those containing both exhausted and unexhausted

claims) must be dismissed in order to enforce the longstanding requirement that a habeas

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The other two issues are claims involving alleged errors committed by the

Michigan Court of Appeals: (1) “[t]he 50-page limit on his supplemental brief on appeal

to the Michigan Court of Appeals was a violation of Petitioner’s right to confrontation

and due process,” and (2) “Petitioner was denied his right to counsel when the Court of

Appeals failed to appoint him advisory counsel after he “fired” his appointed appellate

counsel and requested different counsel to assist him. (Mot. Dismiss, pg. 3). Petitioner

could not have raised these issues in the trial court. 

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petitioner, confined on the authority of a state court judgment, must first exhaust his

remedies in state court). Petitioner disagrees and states that he has exhausted the issues

presented for habeas review. Although Respondent cites four issues as being

unexhausted, the supporting brief only requests that the Court find exhaustion problems

with two of the habeas issues.1

 

Before addressing Respondent’s arguments, the Court notes that on June 19, 2009,

an order was entered addressing eleven motions filed by Petitioner. Because the Court

could not fully read the habeas petition during its review of the motions due to extremely

poor print quality, the Court directed Petitioner as follows:

IT IS FURTHER ORDERED that Petitioner submit either a completely legible copy

of his habeas petition, or in the alternative provide the Court with legible copies of

only the pages that are not decipherable (Pet. pp. 2-12, 24-25, 27, 29; page prior to

F1A; F1A section; F1B section; F1H section; F1J section; F1K section; F1Q section;

and F1S section) on or before, December 9, 2009. 

(Order, dated 6/19/09, pg. 8). To date, the Court has not received a legible copy of the

habeas petition. Apparently, Respondent has in its possession a legible copy because the

Court cannot decipher the habeas issues presented, the statement of facts, or a substantial

amount of the argument and discussion presented in the copy on file. Therefore, the

habeas petition shall be dismissed if a legible copy is not filed with the Court within thirty

(30) days from the date of this Order. 

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Turning to the exhaustion issue, the Supreme Court explained in Rose: 

[t]he exhaustion doctrine is principally designed to protect the state courts’

role in the enforcement of federal law and prevent disruption of state judicial

proceedings. Under our federal system, the federal and state “courts [are]

equally bound to guard and protect rights secured by the Constitution.”

Because “it would be unseemly in our dual system of government for a

federal district court to upset a state court conviction without an opportunity

to the state courts to correct a constitutional violation,” federal courts apply

the doctrine of comity, which “teaches that one court should defer action on

causes properly within its jurisdiction until the courts of another sovereignty

with concurrent powers, and already cognizant of the litigation, have had an

opportunity to pass upon the matter.”

A rigorously enforced total exhaustion rule will encourage state prisoners to

seek full relief first from the state courts, thus giving those courts the first

opportunity to review all claims of constitutional error. As the number of

prisoners who exhaust all of their federal claims increases, state courts may

become increasingly familiar with and hospitable toward federal constitutional

issues. Equally as important, federal claims that have been fully exhausted

in state courts will more often be accompanied by a complete factual record

to aid the federal courts in their review.

455 U.S. at 518-19 (citations and footnote omitted). The first alleged unexhausted issue

quoted from Respondent’s dismissal motion: “[i]mproper hearsay evidence was admitted

by the trial court,” (Mot. Dismiss, 12/7/09, pg. 3), Petitioner asserts that this issue was

raised in his “Appeal (Supplemental) Memorandum of Appellant” filed on February 29, 2008

with the Michigan Court of Appeals. He sought permission from the Michigan Court of

Appeals to file a supplemental brief on appeal, and it was granted. (Doc. #29, sub-part #6).

Petitioner asserts that within his supplemental brief was the exhaustion of the hearsay

issue. Petitioner does raise the issue of hearsay within the context of an ineffective

assistance of counsel claim and when discussing witness reliability and “motive to

blackmail” issues. (Appeal Memo, dated 2/29/08, pp. 38, 43). The issue is not, however,

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 Normally, habeas relief is not available at all with regard to improper hearsay

evidence absent a constitutional infirmity and no constitutional claim is made with

respect to the admission hearsay evidence here. However, the Court need not address

this issue because, as discussed below, it is permitting Petitioner to withdraw his

hearsay claim.

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The Court also finds that Petitioner’s hearsay issue has not been exhausted

because the factual and legal basis for the habeas claim have not been fairly

represented to the state courts as explained further below.

4

The referenced appendix is not a part of the record.

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discussed in the context of the trial court committing an error in the admission of such

hearsay testimony.2

 Therefore, the Court finds that this hearsay issue is unexhausted3.

The next issue as quoted by Respondent is as follows: “Petitioner’s conviction was

against the great weight of the evidence.” (Mot. Dismiss, 12/7/09, pg. 3). Petitioner again

claims that this issue was exhausted within the text of his Appeal Memo as follows:

I did not have pages on which to present so much, including jury tampering, jury

selection, fraud and – it’s obvious – a clear elaboration of insufficient evidence to

convict (e.g., Gadomski’s great weight). I will supply Appendix AW to cover these

additional issues as soon as possible.

(Appeal Memo, dated 2/29/08, pg. 48). Petitioner also states that the “great weight” issue

can be found on pages 360 and 450 of the appendix filed with the Appeal Memo.4

 Simply

because a claim is mentioned in a sentence or buried in a voluminous appendix does not

equate with the issue being exhausted. 

In order for an issue to meet the exhaustion requirement, the claim “must include a

reference to a specific federal constitutional guarantee, as well as a statement of facts that

entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 163 (1996). Both a

factual and legal basis for a claim must be presented in the state courts in order for it to be

deemed exhausted. McMeans v. Brigano, 228 F.3d 674, 681 (2000). Petitioner asserts

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that since he had a page limit restriction on his appeal brief filed in the Michigan Court of

Appeals, his alternative was to file an appendix in excess of 450 pages in an effort to

present all of his claims. It is not the job of this Court to go on a fishing expedition through

a petitioner’s appendix to find issues that may have not been presented within the text of

the habeas petition. See Green v. Johnson, 160 F.3d 1029, 1036, fn. 2 (5th Cir. 1998)

(discussion regarding how it is not the responsibility of the court to search the record for

facts supporting a habeas claim). Moreover, if filing a voluminous appendix was permitted

to allow additional issues to be raised on appeal, the purpose of imposing a page restriction

on appellate briefs would be completely circumvented. Therefore, Petitioner’s “great

weight” claim has not met the exhaustion requirements.

More recently, the Supreme Court held that district courts have the discretion to

“stay the petition and hold it in abeyance while the petitioner returns to state court to

exhaust his previously unexhausted claims. Once the petitioner exhausts his state

remedies, the district court will lift the stay and allow the petitioner to proceed in federal

court.” Rhines v. Weber, 544 U.S. 269, 275-76 (2005). While the Supreme Court authorized

district courts to employ this “stay-and-abeyance” procedure, it cautioned them to limit its

use to appropriate cases:

Stay and abeyance, if employed too frequently, has the potential to

undermine these twin purposes. Staying a federal habeas petition frustrates

AEDPA’s objective of encouraging finality by allowing a petitioner to delay the

resolution of the federal proceedings. It also undermines AEDPA’s goal of

streamlining federal habeas proceedings by decreasing a petitioner’s

incentive to exhaust all his claims in state court prior to filing his federal

petition.

. . .

For these reasons, stay and abeyance should be available only in limited

circumstances. Because granting a stay effectively excuses a petitioner’s

failure to present his claims first to the state courts, stay and abeyance is

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The mere fact that Petitioner is acting pro se does not constitute good cause for

his failure to pursue available state court remedies. See Bonilla v. Hurley, 370 F.3d 494,

498 (6th Cir. 2004).

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only appropriate when the district court determines there was good cause for

the petitioner’s failure to exhaust his claims first in state court. Moreover,

even if a petitioner had good cause for that failure, the district court would

abuse its discretion if it were to grant him a stay when his unexhausted

claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) (“An application for

a writ of habeas corpus may be denied on the merits, notwithstanding the

failure of the applicant to exhaust the remedies available in the courts of the

State”).

544 U.S. at 277.

The Court is not persuaded that “stay and abeyance” is appropriate in the present

case. Petitioner has offered no explanation for failing to adequately present the two claims

at issue to the Michigan courts, either as part of his direct appeal, which he did pursue, or

as part of a motion for relief from judgment under MCR 6.502, which he did not. The Court

notes there is no time limit applicable to motions brought under MCR 6.502. Therefore,

Petitioner could have filed such a motion at any time after he was convicted.5

 Had he

done so at any time prior to the expiration of the one-year limitations period applicable to

habeas petitions, the limitations period would have been tolled while that motion was

pending. See 28 U.S.C. § 2244 (d)(1), (d)(2). 

Instead, after the Michigan Court of Appeals affirmed his conviction, Petitioner filed

an application for leave to appeal with the Michigan Supreme Court adding two new claims

without attempting to exhaust those claims or articulate a reason why these issues were

not exhausted. The Court can discern no “good cause” for Petitioner’s failure to present

his hearsay and great weight of evidence issues to the state courts. “In the absence of any

explanation or justification, Petitioner has not established ‘good cause’ for his failure to

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As stated above, however, if the Court does not receive a legible habeas petition

within thirty (30) days of this order, the petition will be dismissed.

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exhaust [unexhausted] claim[s].” Williams v. Brunsman, 2009 WL 88772, at *4 (S.D. Ohio

Jan.12, 2009). Accord Caporini v. Smith, 2008 WL 4502669, at *4 (S.D. Ohio Oct. 02,

2008).

While stay and abeyance is therefore inappropriate in the present case, the Court

shall nonetheless permit Petitioner to withdraw his unexhausted claims and proceed solely

with the remaining ten claims.6

 As indicated by the Supreme Court in Rhines, “if a

petitioner presents a district court with a mixed petition and the court determines that stay

and abeyance is inappropriate, the court should allow the petitioner to delete the

unexhausted claims and to proceed with the exhausted claims if dismissal of the entire

petition would unreasonably impair the petitioner’s right to obtain federal relief.” 544 U.S.

at 278. In the present case, dismissal of the entire petition would preclude habeas review

even of Petitioner’s exhausted claims, as the one-year limitations period in 28 U.S.C.

§2244(d)(1)(A) has expired.

Motion for Accelerated Relief

In light of the foregoing, addressing Petitioner’s motion for accelerated relief would

be premature. Therefore, the motion is denied without prejudice. 

II. CONCLUSION

Accordingly,

IT IS ORDERED that Respondent’s “Motion to Dismiss” [Dkt. #28] is DENIED.

IT IS FURTHER ORDERED that Petitioner shall submit either a completely legible

copy of his habeas petition, or in the alternative provide the Court with legible copies of

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only the pages that are not decipherable (Pet. pp. 2-12, 24-25, 27, 29; page prior to F1A;

F1A section; F1B section; F1H section; F1J section; F1K section; F1Q section; and F1S

section) within thirty (30) days from the date on this order. If the requested copies are not

filed with the Court within the thirty (30) day time period, this case shall be dismissed.

IT IS FURTHER ORDERED that Petitioner must notify the Court and Respondent

in writing within thirty (30) days from the date of this order whether he is withdrawing the

hearsay and great weight of the evidence claims. If Petitioner withdraws those claims, the

Court will proceed to review only the remaining ten claims. If Petitioner does not withdraw

the two referenced claims, or if he fails to inform the Court and Respondent of his intentions

within thirty (30) days from the date of this order, the Court shall dismiss the habeas

petition in its entirety pursuant to Rose v. Lundy.

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: February 3, 2010

CERTIFICATE OF SERVICE

I hereby certify that on February 3, 2010 , I electronically filed the foregoing paper with the

Clerk of the Court using the ECF system which will send notification of such filing to the following:

 Andrea M. Christensen , and I hereby certify

that I have mailed by United States Postal Service the paper to the following non-ECF participants:

Steven Allen Thomason, #376662, Mid Michigan Correctional Facility, 8201 N. Croswell Road, St.

Louis, MI 48880 .

s/Ruth A. Brissaud 

Ruth A. Brissaud, Case Manager

(313) 234-5137

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