1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WALTER G. HOGUE, #352035,

Petitioner, Civil No. 2:09-CV-11802

HONORABLE ANNA DIGGS TAYLOR

v. UNITED STATES DISTRICT JUDGE

GERALD HOFBAUER,

Respondent,

_________________________________/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT

OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE.

(Docket Entry 3)

Walter G. Hogue, (“Petitioner”), presently confined at the Marquette Branch

Prison in Marquette, Michigan, filed a pro se petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254, in which he challenges his conviction for assault with intent to

commit murder, M.C.L.A. 750.83; felon in possession of a firearm, M.C.L.A. 750.224f;

and possession of a firearm in the commission of a felony, M.C.L.A. 750.227b. Petitioner

has now filed a motion to hold the petition in abeyance to permit him to permit him to

complete post-conviction proceedings in the state courts, in order to exhaust additional

claims that are not included in the current petition. For the reasons stated below, the

Court will hold the petition in abeyance and will stay the proceedings under the terms

outlined below in the opinion to permit petitioner to complete his post-conviction

2:09-cv-11802-ADT-RSW Doc # 4 Filed 09/24/09 Pg 1 of 6 Pg ID 54
2

proceedings in the state courts to exhaust his additional claims, failing which the petition

shall be dismissed without prejudice. The Court will also administratively close the case.

I. Background

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

County Circuit Court. Petitioner’s conviction was affirmed on appeal. People v. Hogue,

No. 277614 (Mich.Ct.App. June 17, 2008); lv. den. 482 Mich. 1065 (2008). 

On May 11, 2009, petitioner filed a petition for writ of habeas corpus, in which he

seeks habeas relief on the three grounds that he raised in the Michigan courts on his direct

appeal. 

Petitioner has now filed a motion to hold the habeas petition in abeyance, because

he recently filed a post-conviction motion for relief from judgment in the Wayne County

Circuit Court, in which he seeks to exhaust additional claims which are not currently part

of his petition. 

II. Discussion

A federal district court has the 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, in order to stay federal proceedings and hold a habeas

petition in abeyance pending resolution of state court proceedings, there must be

exceptional or unusual circumstances. See Sitto v. Bock, 207 F. Supp. 2d 668, 676 (E.D.

Mich. 2002). Federal district courts are authorized to stay fully exhausted federal habeas

petitions pending the exhaustion of other claims. See Moritz v. Lafler, No. 2008 WL

2:09-cv-11802-ADT-RSW Doc # 4 Filed 09/24/09 Pg 2 of 6 Pg ID 55
3

783751 (E.D. Mich. March 19, 2008)(citing Anthony v. Cambra, 236 F. 3d 568, 575 (9th

Cir. 2000); 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 the petition in abeyance while he

completes the exhaustion of his additional claims in his state post-conviction proceedings. 

In this case, 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, as was the

case here, 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 U.S. Supreme Court, in fact, 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 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, 278

(2005)). 

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. To ensure that

2:09-cv-11802-ADT-RSW Doc # 4 Filed 09/24/09 Pg 3 of 6 Pg ID 56
4

there are no delays by petitioner in exhausting his state court remedies, this Court will

impose upon petitioner time limits within which he must proceed with his state court

post-conviction proceedings. See Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002). 

Therefore, in order to avoid petitioner being time-barred from seeking habeas

relief following his return to the state courts, the Court will hold the present petition in

abeyance. This tolling, however, is conditioned upon petitioner initiating his state postconviction remedies, which he has apparently already done, and more importantly,

returning to federal court within sixty days of completing the exhaustion of his state court

post-conviction remedies. Hargrove, 300 F. 3d at 718; Geeter v. Bouchard, 293 F. Supp.

2d 773, 775 (E.D. Mich. 2003). 

Petitioner’s method of properly exhausting these claims in the state courts would

be through filing a motion for relief from judgment with the Wayne County Circuit Court

under M.C.R. 6.502, which he apparently has already done. A trial court is authorized to

appoint counsel for petitioner, seek a response from the prosecutor, expand the record,

permit oral argument, and hold an evidentiary hearing. M.C.R. 6.505-6.507, 6.508 (B)

and (C). Denial of a motion for relief from judgment is reviewable by the Michigan

Court of Appeals and the Michigan Supreme Court upon the filing of an application for

leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. Nasr v. Stegall, 978 F. Supp.

714, 717 (E.D. Mich. 1997). . Petitioner, in fact, is required to appeal the denial of his

post-conviction motion to the Michigan Court of Appeals and the Michigan Supreme

2:09-cv-11802-ADT-RSW Doc # 4 Filed 09/24/09 Pg 4 of 6 Pg ID 57
5

Court in order to properly exhaust the claims that he has raised in his post-conviction

motion. See e.g. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002). 

III. ORDER

Accordingly, it is ORDERED that the petition for writ of habeas corpus shall be

held in abeyance pending the completion of petitioner’s state application for postconviction review. The stay is further conditioned on petitioner’s return to this Court

with an amended petition, using the same caption and case number, within 60 days of

exhausting state remedies. 

To avoid administrative difficulties, the Court ORDERS the Clerk of Court to

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

docket entry shall be considered a dismissal or disposition of this matter. See Sitto, 207 F.

Supp. 2d at 677. 

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.

DATED: September 24, 2009 s/ Anna Diggs Taylor

ANNA DIGGS TAYLOR

UNITED STATES DISTRICT JUDGE

2:09-cv-11802-ADT-RSW Doc # 4 Filed 09/24/09 Pg 5 of 6 Pg ID 58
6

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to

their respective email addresses or First Class U.S. mail disclosed on the Notice of Electronic Filing on September

24, 2009.

Walter Hogue, #352035 

Marquette Branch Prison 

1960 U.S. Hwy 41 South 

Marquette, MI 49855 s/Johnetta M. Curry-Williams

Case Manager

2:09-cv-11802-ADT-RSW Doc # 4 Filed 09/24/09 Pg 6 of 6 Pg ID 59