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Petitioner was on parole for an unrelated offense at the time of his conviction. His parole was

revoked by the state court.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHANNON LOCKRIDGE,

Petitioner,

CASE NO. 2:09-CV-10145

v. JUDGE ARTHUR J. TARNOW

MAGISTRATE JUDGE PAUL KOMIVES

NICK J. LUDWICK,

Respondent.

 /

REPORT AND RECOMMENDATION ON RESPONDENT’S MOTION TO DISMISS

(docket #6) and PETITIONER’S MOTION TO HOLD IN ABEYANCE (docket #10)

I. RECOMMENDATION: The Court should grant petitioner’s motion to hold the petition in

abeyance (docket #10). If the Court accepts this recommendation, the Court should deny as moot

respondent’s motion to dismiss (docket #6).

II. REPORT:

A. Procedural Background

Petitioner Shannon Lockridge is a state prisoner currently confined at the St. Louis

Correctional Facility in St. Louis, Michigan. On March 15, 2007, petitioner was convicted of

conducting a continuing criminal enterprise, MICH. COMP. LAWS § 750.159i, pursuant to his guilty

plea in the Muskegon County Circuit Court.1

 On July 16, 2007, he was sentenced as an habitual

offender to a term of 15-30 years’ imprisonment. Petitioner did not seek to appeal his conviction or

sentence in the Michigan Court of Appeals or Michigan Supreme Court. On January 13, 2009,

petitioner filed an application for the writ of habeas corpus in this Court. Petitioner challenges his

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conviction on the following grounds: (1) improper arrest; (2) improper arraignment; (3) wrongful

conviction; (4) improper sentencing as an habitual offender; (5) trial court lacked jurisdiction; and (6)

improper consecutive sentencing.

On March 23, 2009, respondent filed a motion to dismiss based on petitioner’s failure to

exhaust his state court remedies because petitioner has not presented his claims to the state appellate

courts. Petitioner filed a response to the motion on May 6, 2009, and on November 3, 2009, petitioner

filed a motion to hold his habeas petition in abeyance. In his motion, petitioner asserts that he is now

pursuing his claims in a state court motion for relief from judgment pursuant to MICH. CT. R. 6.500-

.508. Respondent has not filed a response to petitioner’s motion.

B. Analysis

At the outset, the Court may grant petitioner’s motion based on respondent’s failure to file a

response. Respondent has failed to file a response to petitioner’s motion, although his time for doing

so has now expired. See E.D. Mich. LR 7.1(d). Because a response has not been filed, the motion

is deemed unopposed, see E.D. Mich. LR 7.1(b) (emphasis added) (“A respondent opposing a

motion must file a response, including a brief and supporting documents then available.”), and may

be granted on that basis. See Brobson v. Borough of New Hope, No. 00-0003, 2000 WL 1738669,

at *7 (E.D. Pa. Nov. 22, 2000); Earl’s Offset Sales & Serv. Co., Inc. v. Bekins/EDC, Inc., 903 F.

Supp. 1148, 1149 (S.D. Tex. 1995).

Nevertheless, the Court should also conclude that petitioner is entitled to the relief he seeks

on the merits. In Rhines v. Weber, 544 U.S. 269 (2005), the Court considered the intersection of the

total exhaustion rule–which requires a court to dismiss a mixed petition containing exhausted and

unexhausted claims–and the habeas statute’s one year limitations period, which does not toll the

time spent pursuing an unexhausted claim in federal court. Recognizing “the gravity of this

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Rhines in particular, and the stay-and-abeyance procedure in general, usually concerns a mixed

petition–that is, one containing exhausted and unexhausted claims. Here, petitioner’s habeas application

is technically not a mixed petition, because each of his claims for relief has been exhausted. Rather,

petitioner has asserted separate claims of ineffective assistance of counsel solely as cause to excuse his

procedural default. I have found no cases addressing the propriety of the stay-and-abeyance procedure

in such a case, although at least one court prior to Rhines had entered a stay to permit exhaustion of an

ineffective assistance of counsel claim asserted as cause. See Cameron v. New York, No. 01 Civ. 9988,

2002 WL 31898076, at *8-*9 (S.D.N.Y. Dec. 30, 2002). Nevertheless, Rhines adopts a flexible test which

is applicable here. As the Court explained, the purpose of the stay-and-abeyance procedure is to prevent

the complex exhaustion, procedural default, and statute of limitations rules applicable to habeas petitions

from “unreasonably impair[ing] the petitioner’s right to obtain federal relief.” Rhines, 544 U.S. at 278;

see also, Rose v. Lundy, 455 U.S. 509, 522 (1982). Precluding the stay-and-abeyance procedure here would

unreasonably impair petitioner’s right to fully adjudicate his claims no less than if his petition were a true

mixed petition.

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problem and the difficulty it has posed for petitioners and federal district courts alike,” id. at 275,

the Court approved, at least in some circumstances, the lower courts’ use of the so-called “stay and

abeyance” procedure. “Under this procedure, rather than dismiss the mixed petition . . . a district

court might 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.” Id. at 275-76.2

Balancing the interests served by the habeas statute’s finality and timeliness requirements

against the petitioner’s interest in having his claims adjudicated in a federal habeas proceeding, the

Court concluded that stay-and-abeyance is permissible, but “should be available only in limited

circumstances.” Id. at 277. Specifically, stay-and-abeyance “is only appropriate when the district

court determines there was good cause for the petitioner’s failure to exhaust his claims in state

court.” Id. Further, even where good cause is present, the court should not grant a stay where the

unexhausted claims are plainly meritless. See id. Additionally, “if a petitioner engages in abusive

litigation tactics or intentional delay, the district court should not grant him a stay at all.” Id. at 278.

Thus, a district court should ask three questions in deciding whether to stay a mixed petition: (1)

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is there a lack of good cause for the failure to exhaust?; (2) are the unexhausted claims plainly

meritless?; and (3) has the petitioner engaged in abusive or dilatory litigation tactics? If any of

these questions is answered in the affirmative, the court should not stay the habeas proceedings.

Here, there is no indication that petitioner has engaged in abusive or dilatory litigation

tactics. Further, although not commenting on their ultimate merit, petitioner’s claims are not plainly

meritless on their face. That leaves only the question of good cause. Unfortunately, “[t]he Supreme

Court did not define ‘good cause’ in Rhines, and no Circuit Court of Appeals has yet opined on its

meaning.” Brown v. Ebert, No. 05 Civ. 5579, 2006 WL 1273830, at *2 (S.D.N.Y. May 9, 2006)

(internal quotation omitted). Nevertheless, some contours have emerged from the Supreme Court

and the Ninth Circuit. In Pace v. DiGuglielmo, 544 U.S. 408 (2005), the Court noted in discussing

a statute of limitations issue that “[a] petitioner’s reasonable confusion about whether a state filing

would be timely will ordinarily constitute ‘good cause’ for him to file in federal court.” Id. at 416.

Second, in Jackson v. Roe, 425 F.3d 654 (9th Cir. 2005), the Ninth Circuit rejected the district court’s

equation of “good cause” with the “extraordinary circumstances” test applied under section 10(e) of

the National Labor Relations Act. See id. at 662. The court concluded that the “good cause” test was

not as stringent as the “extraordinary circumstances” test, but provided no further guidance on the

issue. See id.

Faced with this dearth of authority, the district courts have adopted a number of different tests

to determine whether “good cause” has been shown. A number of courts “have analogized the ‘good

cause’ standard with the showing of ‘cause’ required to overcome a procedural bar.” Fernandez v.

Artuz, No. 00 Civ. 7601, 2006 WL 121943, at * (S.D.N.Y. Jan. 18, 2006) (citing cases). Such a view

of the “good cause” requirement, however, is at odds with the Court’s later recognition in Pace that

a mere “reasonable confusion” about filing requirements ordinarily constitutes good cause because

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such reasonable confusion or ignorance of the law generally does not constitute the type of cause

sufficient to excuse a procedural default. See, e.g., Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir.

2004); Vasquez v. Lockhart, 867 F.2d 1056, 1058 (8th Cir. 1988). Thus, Pace “suggest[s] a more

expansive definition of ‘good cause’ . . . than the showing needed for ‘cause’ to excuse a procedural

default.” Rhines v. Weber, 408 F. Supp. 2d 844, 849 (D.S.D. 2005) (on remand from Court’s decision

in Rhines).

Beyond noting that good cause under Rhines is something less than the “cause” needed to

excuse a procedural default, the Court need not definitively resolve this question because petitioner’s

situation is akin to the situation discussed by the Court in Pace. Here, there is no evidence that

petitioner’s failure to exhaust his claims stemmed from anything other than “reasonable confusion”

arising from the intricacies of the state appellate process and habeas jurisprudence’s procedural rules.

Petitioner’s failure to exhaust, in other words, arises from “the procedural complexities confronting

a prisoner who endeavors to exercise his statutory right to challenge a state court conviction by means

of a petition to a federal district court for a writ of habeas corpus.” Zarvela v. Artuz, 254 F.3d 374,

378 (2d Cir. 2001). Petitioner’s “reasonable confusion,” Pace, 544 U.S. at 416, is sufficient to

constitute “good cause” for a stay of the proceedings while petitioner exhausts his ineffective

assistance of counsel claims. See Rhines, 544 U.S. at 279 (Stevens, J., concurring) (quoting Rose v.

Lundy, 455 U.S. 509, 520 (1982) (explaining that the Court’s “good cause” standard “is not intended

to impose the sort of strict and inflexible requirement that would ‘trap the unwary pro se prisoner.’”).

Thus, the Court should grant petitioner’s request for a stay of the proceedings so that he may

exhaust his claims. In doing so, however, the Court’s “discretion in structuring the stay is limited by

the timeliness concerns reflected in AEDPA.” Rhines, 544 U.S. at 277. Thus, the Court must “place

reasonable time limits on . . . petitioner’s trip to state court and back.” Id. at 278. In pre-Rhines cases

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I note that an apparent statute of limitations problem arises from the fact that petitioner was

sentenced on July 16, 2007, but did not file his habeas application until January 13, 2009. If there is a

limitations problem in this respect, a stay of the proceedings does not foreclose respondent’s ability to

raise this argument. A stay only has the effect of protecting petitioner’s January 13, 2009, filing date,

so that the statute does not continue to run after that date. Any limitations problem which existed prior

to the January 13, 2009, filing date is not implicated by the Court’s stay, and respondent remains free

to raise any such issue when the stay is lifted.

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the Sixth Circuit, adopting the Second Circuit’s approach in Zarvela v. Artuz, 254 F.3d 374 (2d Cir.

2001), explained that “[w]hen a district court elects to stay a petition, ‘it should explicitly condition

the stay on the prisoner’s pursuing state court remedies within a brief interval, normally 30 days, after

the stay is entered and returning to federal court within a similarly brief interval, normally 30 days

after state court exhaustion is completed.’” Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th Cir.

2002) (quoting Zarvela, 254 F.3d at 381); see also, Godbolt v. Russell, 82 Fed. Appx. 447, 452 (6th

Cir. 2003); Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). This approach is consistent with

the command of Rhines. See Rhines, 544 U.S. at 278 (citing with approval the Second Circuit’s

approach in Zarvela). Accordingly, the Court should grant petitioner’s request for a stay, conditioned

on his filing a motion for relief from judgment in the state court within 30 days of the Court’s order

entering the stay, and on his seeking a lifting of the stay within 30 days of exhausting the state court

appeals process.3

C. Conclusion

In view of the foregoing, the Court should grant petitioner’s motion to hold the petition in

abeyance and should stay the case conditioned on petitioner’s (1) commencing state court proceedings

on his unexhausted claims within 30 days of the Court’s order entering a stay, and (2) returning to this

Court and seeking a lifting of the stay within 30 days of the conclusion of the state court proceedings.

If the Court accepts this recommendation, the Court should deny as moot respondent’s motion to

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dismiss.

III. NOTICE TO PARTIES REGARDING OBJECTIONS:

The parties to this action may object to and seek review of this Report and Recommendation,

but are required to act within fourteen (14) days of service of a copy hereof as provided for in 28

U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a

waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Secretary of

Health & Human Servs., 932 F.2d 505 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th

Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity, will

not preserve all the objections a party might have to this Report and Recommendation. Willis v.

Secretary of Health & Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Federation

of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR 72.1(d)(2),

a copy of any objections is to be served upon this Magistrate Judge.

Within fourteen (14) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than five (5) pages in length

unless by motion and order such page limit is extended by the Court. The response shall address

specifically, and in the same order raised, each issue contained within the objections.

s/Paul J. Komives 

PAUL J. KOMIVES

UNITED STATES MAGISTRATE JUDGE

Dated: 11/30/09

The undersigned certifies that a copy of the foregoing

order was served on the attorneys of record by

electronic means or U.S. Mail and Shannon Lockridge

on November 30, 2009.

s/Eddrey Butts 

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