UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY WAYNE WARD,

Petitioner, 

v.

THOMAS BELL,

Respondent. 

/

Case Number: 09-CV-12669

Honorable Lawrence P. Zatkoff

OPINION AND ORDER 

(1) GRANTING PETITIONER’S MOTION FOR STAY AND 

(2) ADMINISTRATIVELY CLOSING CASE

Petitioner Anthony Wayne Ward filed a pro se petition for a writ of habeas corpus under 28

U.S.C. § 2254. Petitioner, who is a state inmate currently incarcerated at the Parr Highway

Correctional Facility in Adrian, Michigan, challenges his conviction for one count of first-degree

criminal sexual conduct and five counts of second-degree criminal sexual conduct. Now before the

Court is Petitioner’s “Motion for Stay” [dkt 3].

I. 

Following a jury trial in Wayne County Circuit Court, Petitioner was convicted as stated

above. He was sentenced to nine- to eighteen-years’ imprisonment for the first-degree-criminalsexual-conduct conviction and seven-and-one-half- to fifteen-years’ imprisonment for the seconddegree-criminal-sexual-conduct convictions.

Petitioner filed an appeal of right in the Michigan Court of Appeals, raising an insufficientevidence claim regarding his conviction for first-degree criminal sexual conduct. The Michigan

Court of Appeals affirmed Petitioner’s convictions. People v. Ward, No. 251407, 2005 WL 473935

(Mich. Ct. App. Mar. 1, 2005).

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Petitioner filed an application for leave to appeal in the Michigan Supreme Court, raising the

same claim raised in the Michigan Court of Appeals. The application was denied on October 31,

2005. People v. Ward, 705 N.W.2d 133 (Mich. 2005). Petitioner did not file a writ of certiorari in

the United States Supreme Court.

On January 27, 2007, Petitioner filed a motion for relief from judgment in the Wayne County

Circuit Court, raising the following claims: (1) setting aside the judgment of conviction and vacation

of sentences, (2) newly discovered evidence, (3) ineffective assistance of trial counsel, and (4)

ineffective assistance of appellate counsel. The Wayne County Circuit Court ordered a resentencing and a response from the prosecution because of defects in the original sentencing and

denied Petitioner’s remaining claims. People v. Ward, No. 03-006707-01 (Wayne County Circuit

Court Sept. 20, 2007). Petitioner was subsequently re-sentenced to eighty-one months to eighteen

years for the first-degree-criminal-sexual-conduct conviction and eighty-one months to fifteen years

for the second-degree-criminal-sexual-conduct convictions.

Petitioner filed an appeal in the Michigan Court of Appeals. The Michigan Court of Appeals

affirmed but remanded for the correction of Petitioner’s sentencing-information report and presentence investigation report. People v. Ward, No. 284314, 2009 WL 1360991 (Mich. Ct. App. May

12, 2009).

Petitioner filed an application for leave to appeal in the Michigan Supreme Court on June

29, 2009. That matter remains pending.

Petitioner filed the pending petition for a writ of habeas corpus on July 7, 2009, raising all

the claims raised on direct review in state court and in his motion for relief from judgment. Now

before the Court is Petitioner’s “Motion for Stay” [dkt 3].

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II.

State prisoners must exhaust available state remedies for each of the claims presented in a

habeas petition before seeking a federal writ of habeas corpus. 28 U.S.C. § 2254(b)(1). Petitioner

states that the claims raised in his habeas corpus petition have not yet been fully exhausted in state

court. He is in the process of exhausting these claims as they are the subject of an application for

leave to appeal the trial court’s denial of his motion for relief from judgment currently pending in

the Michigan Supreme Court. Petitioner asks the Court to stay the pending petition until these

claims are fully exhausted in state court.

A federal court may stay a federal habeas petition and hold further proceedings in abeyance

pending resolution of state-court post-conviction proceedings, provided there is good cause for

failure to exhaust the claims and that the unexhausted claims are not “plainly meritless.” Rhines v.

Weber, 544 U.S. 269, 278 (2005). Petitioner states that his unexhausted claims were not presented

in state court because his appellate attorney was ineffective. An appellate attorney cannot be

expected to raise his own ineffective assistance on appeal. Combs v. Coyle, 205 F.3d 269, 276 (6th

Cir. 2000). Thus, the Court finds that Petitioner has asserted good cause for failing previously to

present these claims. In addition, the Court finds that these claims are not “plainly meritless” and

that Petitioner has not engaged in intentionally dilatory tactics. See Rhines, 544 U.S. at 277–78.

Therefore, the Court stays further proceedings in this matter pending Petitioner’s exhaustion of the

unexhausted claims.

When 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.” Id. at 278. To ensure that Petitioner does not delay in exhausting his state-court

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remedies, the Court imposes upon Petitioner time limits within which he must proceed. See Palmer

v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). Petitioner, whose application for collateral review

is currently pending in state court, must ask this Court to lift the stay within sixty days of exhausting

his state court remedies. See id. “If the conditions of the stay are not met, the stay may later be

vacated nunc pro tunc as of the date the stay was entered, and the petition may be dismissed.” Id.

(internal quotation omitted). 

III.

Accordingly, 

IT IS ORDERED that Petitioner’s “Motion for Stay” [dkt 3] is GRANTED. Petitioner

shall file a motion to lift the stay and an amended petition in this court within sixty days after the

conclusion of the state-court proceedings.

IT IS FURTHER ORDERED that, to avoid administrative difficulties, the Clerk of the

Court close this case for statistical purposes only. Nothing in this order or in the related docket entry

shall be considered a dismissal of this matter. Upon receipt of a motion to lift the stay following

exhaustion of state remedies, the Court may order the Clerk to reopen this case for statistical

purposes.

s/Lawrence P. Zatkoff 

LAWRENCE P. ZATKOFF

UNITED STATES DISTRICT JUDGE

Dated: July 20, 2009

CERTIFICATE OF SERVICE

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The undersigned certifies that a copy of this Order was served upon the attorneys of

record by electronic or U.S. mail on July 20, 2009.

s/Marie E. Verlinde 

Case Manager

(810) 984-3290

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