UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES GIDRON,

Petitioner,

v.

BARRY DAVIS,

Respondent. 

/

Case Number: 2:09-CV-10493

HONORABLE LAWRENCE P. ZATKOFF

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART

PETITIONER’S “MOTION TO STAY HABEAS CORPUS PETITION . . .”

AND ADMINISTRATIVELY CLOSE CASE

Petitioner James Gidron filed a pro se petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. Petitioner challenges his convictions for two counts of assault with intent to murder,

second-degree murder, discharging a firearm at a building, felonious assault, and four counts of

felony firearm. Now before the Court is Petitioner’s Motion to Stay Habeas Corpus Petition and

Administratively Close Case Or In the Alternative Allow Petitioner to Expand the Record. For the

reasons stated, the Court will grant the motion and administratively close the matter. 

I.

Petitioner pleaded no contest in Saginaw County Circuit Court as set forth above. He was

sentenced to 25 to 50 years in prison for each assault conviction, 23 to 50 years in prison for the

second-degree murder conviction, two to four years in prison for the discharging a firearm at a

building conviction, two to four years in prison for the felonious assault conviction, and two years

for each of the felony-firearm convictions.

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

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the following claim: 

I. The trial court erred by denying defendant’s motion to withdraw plea. 

The Michigan Court of Appeals denied leave to appeal. People v. Gidron,, No. 277205

(Mich. Ct. App. May 9, 2007). 

Petitioner filed an application for leave to appeal in the Michigan Supreme Court. He raised

the same claim raised in the Michigan Court of Appeals. The Michigan Supreme Court denied leave

to appeal. People v. Gidron, 480 Mich. 891 (Mich. Sept. 24, 2007).

Petitioner filed a motion for relief from judgment in the trial court, raising these claims:

I. By ill-advising Defendant, trial counsel did so induce an involuntary plea

acceptance, thereby rendering ineffective assistance of counsel.

II. The trial court abused its discretion when it twice denied Defendant’s request for

substitution of counsel.

III. Defendant satisfies cause and prejudice as set forth in M.C.R. 6.508(D) for each of

the above arguments by proving constitutionally ineffective assistance on the parts

of trial and appellate counsel, violating his Sixth Amendment right to effective

assistance of counsel and Fourteenth Amendment right to due process. 

The trial court denied the motion. People v. Gidron, No. 05-026076 (Saginaw County Cir.

Ct. Feb. 25, 2008). Petitioner filed applications for leave to appeal the trial court’s denial in the

Michigan Court of Appeals and Michigan Supreme Court. Both state appellate courts denied leave

to appeal. People v. Gidron, No. 284542 (Mich. Ct. App. July 29, 2008); People v. Gidron, 482

Mich. 1069 (Mich. 2008). 

Petitioner then filed a habeas corpus petition. He raises the same claims raised on direct and

collateral review. Now before the Court is Petitioner’s Motion to Hold Habeas Petition in

Abeyance. 

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II.

Petitioner has filed a motion to hold the habeas petition in abeyance so that he can return to

the state courts to raise additional claims which have not been exhausted with the state courts. He

claims that newly discovered evidence shows that his attorney was ineffective in providing him

incorrect information upon which he relied in deciding to plead no contest and that his plea,

consequently, was not knowingly or voluntarily entered. Further, he claims that his appellate

attorney was ineffective in failing to discover the newly discovered evidence. 

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, while all of the claims presented in his habeas corpus petition have been exhausted, he

would like the petition stayed while he returns to state court to exhaust five additional claims 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 if outright dismissal of a habeas

petition would jeopardize the timeliness of a future petition, there is good cause for the petitioner’s

failure to exhaust those claims, the unexhausted claims are not “plainly meritless,” and “there is no

indication that the petitioner engaged in intentionally dilatory litigation tactics.” Rhines v. Weber,

544 U.S. 269, 278 (2005). 

In this case, the outright dismissal of the petition, even without prejudice, may preclude

future consideration of Petitioner’s claims in this Court due to the expiration of the statute of

limitations. See 28 U.S.C. § 2241(d)(1). Staying a habeas corpus proceeding is appropriate where,

as here, the original petition was timely filed, but a second, exhausted habeas petition may be time

barred by the AEDPA's statute of limitations. See Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th

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Cir. 2002). The Court finds that outright dismissal of the petition would jeopardize the timeliness

of any future habeas petition. 

Petitioner states that his unexhausted claims were not presented in state court because they

are newly discovered. He claims to have decided to enter a plea because his attorney advised him

that his co-defendant had entered a plea deal pursuant to which the co-defendant would testify

against Petitioner. Petitioner states that he did not learn until March 2011 that this information was

incorrect. Additionally, Petitioner argues that his appellate attorney was ineffective in failing to

discover that the predicate for his plea was incorrect. 

The Supreme Court did not define “good cause” in Rhines, nor has the Sixth Circuit Court

of Appeals done so. See Bates v. Knab, 2011 WL 2785244, *5 (S.D. Ohio July 15, 2011), citing

Hnatiuk v. Trombley, 2008 WL 3305157 (E.D. Mich. Aug. 11, 2008). A number of federal courts

have concluded that the Rhines good cause requirement in this context is less stringent than that

required for a showing of procedural default. See Lockridge v. Ludwick, 2009 WL 5217592, *3

(E.D. Mich. Dec. 28, 2009) (holding that “good cause under Rhines is something less than the cause

needed to excuse a procedural default”); Bryant v. Greiner, 2006 WL 1675938, *5 (S.D. N.Y. June

15, 2006) (same); Rhines v. Weber, 408 F. Supp. 2d 844, 849 (D.S.D. 2005) (on remand, applying

a more expansive definition of “good cause” than the showing needed for cause to excuse a

procedural default); Jackson v. Roe, 425 F.3d 654, 662 (9th Cir. 2005) (holding that “good cause”

standard prescribed in Rhines does not require a showing of “extraordinary circumstances”). 

Petitioner states that his unexhausted claims were not presented in state court because he did

not discover the factual basis for these claims until after filing his habeas corpus petition. Courts

have found the “good cause” standard satisfied where unexhausted claims are based on recently

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discovered evidence. See Midgett v. Curtin, 2010 WL 457459, *1 (E.D. Mich. Feb. 8, 2010)

(holding petitioner’s contention that unexhausted claims were not presented in state court because

they were newly discovered sufficient to satisfy Rhines “good cause” requirement); Reed v.

Wolfenbarger, 2009 WL 3059135, *3 (E.D. Mich. Sept. 21, 2009) (same); Henderson v. Bell, 2009

WL 1923527, *1 (E.D. Mich. July 9, 2009) (same) ; Leonardos v. Buddress, 2007 WL 1174825, *

3 (N.D. Cal. Apr.19, 2007) (granting stay and finding “good cause” under Rhines, in part, because

petitioner's unexhausted claims were based on recently discovered evidence and “newly discovered

evidence weighs in favor of finding good cause”); Lugo v. Kirkland, 2006 WL 449130, *4 (N.D.

Cal. Feb.22, 2006) (granting stay of petition under Rhines, in part where petitioner demonstrated

“good cause” by showing that new claims were discovered after state appeal process concluded and

petitioner had filed federal petition). Additionally, Petitioner states that the unexhausted claims

were not previously presented in state court because his appellate and trial attorneys were

ineffective. “The alleged ineffectiveness of appellate counsel constitutes ‘good cause’ to justify

holding a habeas petition in abeyance during the petitioner’s return to state court.” Fox v. Curley,

2010 WL 538299, *3 (E.D. Mich. Feb. 10, 2010). The Court finds that Petitioner has asserted good

cause for failing previously to present these claims. 

The Court also must determine whether Petitioner’s claims that he seeks to exhaust are

“plainly meritless.” In Rhines, the Supreme Court did not establish a standard for determining

whether a petitioner’s claims are “potentially meritorious.” Most courts applying the standard do

so in conclusory fashion without weighing or even considering the evidence. See Anthony v. Palmer,

2011 WL 1532162, *2 (E.D. Mich. Apr. 22, 2011) (granting stay under Rhines and holding that

unexhausted claims are potentially meritorious with no analysis of merits of the claims);

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Wengorovius v. Scutt, 2009 WL 2849577, *3 (E.D. Mich. Sept. 1, 2009) (granting stay and

determining that unexhausted claims are not “plainly meritless” based upon an “initial review of the

substance of the unexhausted issues” with no further discussion or analysis); Wright v. Trombley,

2007 WL 4181316, *3 (E.D. Mich. Nov. 27, 2007) (same). See also Woodson v. Smith, 2010 WL

3781579, *4 (N.D. Ohio Sept. 23, 2010) (holding, without further discussion, that petitioner’s

“claims are potentially meritorious in that none of his claims are plainly without merit”); Cueto v.

McNeil, 2010 WL 1258065, *16 (S.D. Fla. March 12, 2010) (collecting cases). In Bartelli v.

Wynder, 2005 WL 1155750, *2 (E.D. Pa. May 12, 2005), the District Court for the Eastern District

of Pennsylvania held that a petitioner’s unexhausted claims were not plainly meritless because they

alleged a violation of petitioner’s constitutional rights that could serve as grounds for granting a writ

of habeas corpus if supported by sufficient facts. 

A habeas petitioner may attack a guilty plea on the ground that his plea was rendered

involuntary or unintelligent as a result of ineffective assistance of counsel. See Hill v. Lockhart, 474

U.S. 52, 56-57 (1985). To obtain relief on a claim of deficient advice in connection with a plea

offer, the petitioner must show that if he had received accurate information, he would not have

accepted the plea. Id. Petitioner states that, had counsel not misadvised him, he would have elected

to proceed to trial. This claim, if supported by sufficient evidence, is not plainly meritless. 

Finally, given that Petitioner claims to have discovered this evidence in March 2011, and

filed a motion for stay within a few weeks of discovering the evidence, he does not appear to be

engaging in intentionally dilatory litigation tactics. Therefore, the Court stays further proceedings

in this matter pending exhaustion of the unexhausted claims. 

The Court notes that Michigan Court Rule 6.502(G)(1) generally permits a defendant to file

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only one motion for relief from judgment. Petitioner already has filed a motion for relief from

judgment. However, Michigan Court Rule 6.502(G)(2) permits a defendant to file a successive

motion for relief from judgment under certain, limited circumstances, including when the defendant

asserts a claim of newly discovered evidence. Therefore, it appears that an avenue for exhaustion

remains available to Petitioner in state court. 

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

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 must present his claims in state court

within sixty days from the date of this Order. See id. Further, he 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.” Palmer, 276 F.3d at 781 (internal quotation omitted). 

III.

Accordingly, IT IS ORDERED that Petitioner’s Motion to Stay Habeas Corpus Petition and

Administratively Close Case Or in the Alternative Allow Petitioner to Expand the Record [dkt. #

10] is GRANTED IN PART AND DENIED IN PART. The request to stay these proceedings is

GRANTED and the request to expand the record is DENIED WITHOUT PREJUDICE to

Petitioner’s right to seek such relief if and when he seeks leave to reopen this proceeding. Petitioner

shall file a motion for relief from judgment in state court within sixty days from the date of this

Order and a motion to lift the stay and amended petition in this Court within sixty days after the

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conclusion of the state court proceedings. 

IT IS FURTHER ORDERED that, to avoid administrative difficulties, the Clerk of 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: August 11, 2011

CERTIFICATE OF SERVICE

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

by electronic or U.S. mail on August 11, 2011.

S/Marie E. Verlinde 

Case Manager

(810) 984-3290

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