UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CORY DONALD,

Petitioner,

v. Case No. 09-cv-11751

HON. AVERN COHN

JEFFREY WOODS,1

Respondent.

_______________________/

ORDER STAYING PROCEEDINGS ON PETITIONER’S MOTION TO AMEND

PETITION (Doc. 31)

I.

This is a habeas case under 28 U.S.C. § 2254. Petitioner Cory Donald is serving

a mandatory and non-parolable life sentence following his conviction for first-degree

murder and a concurrent sentence of ten-and-one-half to twenty years for armed

robbery. His convictions occurred following a jury trial in Wayne County Circuit Court.

Petitioner, who was sixteen-years old at the time of the crime, was tried with codefendants, Rashad Moore and Dewayne Saine under an aiding and abetting theory. 

On December 5, 2012, the Court granted Petitioner a conditional writ of habeas

corpus on the ground that his convictions are unconstitutional because his attorney’s

absence during a critical stage in his trial was per se ineffective under United States v.

Cronic, 466 U. S. 648 (1984) and on the ground that counsel’s actions constituted were

ineffective under Strickland v. Washington, 466 U.S. 668 (1984). Donald v. Rapelje,

1

When Petitioner filed his original petition, he named as Respondent warden

Lloyd Rapelje. Petitioner is now housed at the Chippewa Correctional Facility, where

his warden is Jeffrey Woods. The caption is AMENDED to reflect the change.

2:09-cv-11751-AC-MJH Doc # 38 Filed 08/05/15 Pg 1 of 3 Pg ID 3353
No. 09-cv-11751, 2012 WL 6047130 (E.D. Mich. Dec. 5, 2012). The state appealed. 

The Court of Appeals for the Sixth Circuit, 2-1, affirmed based on Cronic. Donald v.

Rapelje, 580 F. App’x 277 (2014). The Supreme Court granted certiorari and reversed

the Sixth Circuit’s Cronic decision. Woods v. Donald, 575 U.S. ___, 135 S. Ct. 1372

(2015). On remand, the court of appeals vacated the Court’s grant of the writ and

remanded for further proceedings. Donald v. Woods, 12-2624 (June 17, 2015). The

mandate issued on July 9, 2015. 

II.

Now before the Court is Petitioner’s motion to amend the petition. Petitioner

seeks to assert a claim based on the Supreme Court’s June 25, 2012 decision in Miller

v. Alabama, 567 U.S. ___. 132 S. Ct. 2455 (2012). In Miller, the Supreme Court held

that for a juvenile, a mandatory life without parole sentence violates the Eighth

Amendment’s prohibition of cruel and unusual punishment. 

On March 13, 2015, the Supreme Court granted certiorari on the question of

whether Miller is retroactive. Montgomery v. Louisiana, No. 14-280, 135 S. Ct. 1546

(2015).2

 The case will be argued in the upcoming 2015-2016 term. In addition to the

issue of whether Miller is retroactive, the Supreme Court will also consider whether it

has jurisdiction to decide whether a state court correctly refused to give retroactive

effect to Miller. Petitioner and Respondent agree that a ruling favorable to Petitioner will

2

During the pendency of Petitioner’s habeas appeals, in 2014, the Michigan

Supreme Court ruled that Miller is not retroactive. People v. Carp, 496 Mich. 440

(2014). Other states, such as Illinois, New Hampshire, South Carolina, Texas, and Iowa

have issued contrary rulings. Colorado, Louisiana, Minnesota, and Pennsylvania have

agreed with Michigan that Miller is not retroactive.

2

2:09-cv-11751-AC-MJH Doc # 38 Filed 08/05/15 Pg 2 of 3 Pg ID 3354
impact Petitioner’s Miller claim.

III.

Accordingly, proceedings on Petitioner’s motion to amend are STAYED pending

the Supreme Court’s decision in Montgomery. 

SO ORDERED.

s/Avern Cohn 

Avern Cohn

United States District Judge

Dated: August 5, 2015

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

record on August 5, 2015, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager

3

2:09-cv-11751-AC-MJH Doc # 38 Filed 08/05/15 Pg 3 of 3 Pg ID 3355