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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARVIN LAVEL JOHNSON,

 Petitioner,

v. CASE NO. 09-CV-10108

HONORABLE MARIANNE O. BATTANI

CINDI CURTIN,

Respondent.

__________________________________/

OPINION AND ORDER STAYING AND ADMINISTRATIVELY CLOSING CASE

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Marvin Lavel Johnson (“Petitioner”), a

Michigan prisoner currently confined at the Oaks Correctional Facility in Manistee, Michigan,

was convicted of first-degree criminal sexual conduct (person under 13) in the Wayne County

Circuit Court and was sentenced to 210 to 600 months imprisonment in 2005. In his petition, he

raises claims concerning pre-arrest delay, the admission of similar acts evidence, and

prosecutorial misconduct relative to the admission of his police statements. For the reasons set

forth herein, the Court concludes that Petitioner has not fully exhausted his state court remedies. 

Due to timeliness concerns, the Court shall stay and administratively close this case pending the

exhaustion of state court remedies or a motion to re-open the case to proceed only on the

exhausted claims.

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II. Analysis

A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254 must first

exhaust all state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“state

prisoners must give the state courts one full fair opportunity to resolve any constitutional issues

by invoking one complete round of the State’s established appellate review process”); Rust v.

Zent, 17 F.3d 155, 160 (6th Cir. 1994). A Michigan prisoner must raise each issue he seeks to

present in a federal habeas proceeding to the state courts. Each issue must be presented to both

the Michigan Court of Appeals and the Michigan Supreme Court to satisfy the exhaustion

requirement. See Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999); see also Hafley v.

Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The burden is on the petitioner to prove exhaustion. 

Rust, 17 F.3d at 160.

Petitioner has not met his burden of demonstrating exhaustion of state court remedies. 

He admits that he did not present his prosecutorial misconduct claim to the Michigan Court of

Appeals and first raised that claim before the Michigan Supreme Court on discretionary review. 

Submission of claims to a state’s highest court on discretionary review does not constitute “fair

presentation” when such review is granted only upon “special and important reasons.” Castille

v. Peoples, 489 U.S. 346, 349 (1989). Petitioner has failed to show that he has properly

exhausted all of his habeas claims in the state courts.

Generally, a federal district court should dismiss a “mixed” petition for writ of habeas

corpus, that is, one containing both exhausted and unexhausted claims, “leaving the prisoner

with the choice of returning to state court to exhaust his claims or amending and resubmitting the

habeas petition to present only exhausted claims to the district court.” Rose v. Lundy, 455 U.S.

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509, 510 (1982); see also Rust, 17 F.3d at 160. While the exhaustion requirement is strictly

enforced, it is not a jurisdictional prerequisite for bringing a habeas petition. See Granberry v.

Greer, 481 U.S. 129, 134-35 (1987). For example, an unexhausted claim may be addressed if

pursuit of a state court remedy would be futile, see Witzke v. Withrow, 702 F. Supp. 1338, 1348

(W.D. Mich. 1988), or if the unexhausted claim is meritless such that addressing it would be

efficient and not offend federal-state comity. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.

1987); see also 28 U.S.C. § 2254(b)(2) (habeas petition may be denied on the merits despite the

failure to exhaust state court remedies). Additionally, a federal district court has discretion to

stay a mixed habeas petition to allow a petitioner to present his unexhausted claims to the state

courts in the first instance and then return to federal court on his perfected petition. See Rhines

v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is available only in “limited

circumstances” such as when the one-year statute of limitations applicable to federal habeas

actions poses a concern, and when the petitioner demonstrates “good cause” for the failure to

exhaust state court remedies before proceeding in federal court and the unexhausted claims are

not “plainly meritless.” Id. at 277.

Petitioner has available remedies in the Michigan courts which must be exhausted before

proceeding in federal court. For example, he may file a motion for relief from judgment

pursuant to Michigan Court Rule 6.500 with the trial court and pursue his unexhausted claim in

the state appellate courts as necessary. His unexhausted claim should therefore be addressed to,

and considered by, the state courts in the first instance.

The remaining question is whether the Court should dismiss the mixed habeas petition

without prejudice or stay the proceedings to allow Petitioner to fully exhaust state remedies. 

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Having reviewed the matter, the Court finds that a stay is warranted. First, the one-year statute

of limitations applicable to federal habeas actions could pose a problem if the Court were to

dismiss the petition to allow for further exhaustion of state remedies. See 28 U.S.C. §

2244(d)(1). Petitioner’s convictions became final 90 days after the Michigan Supreme Court

denied leave to appeal – on or about January 27, 2008. He dated the instant petition on January

5, 2009. Thus, only a few weeks of the one-year period remain. Second, Petitioner alleges that

defense counsel refused to raise the unexhausted claim in the Michigan Court of Appeals. If he

were to establish that counsel was ineffective, good cause could be shown. Third, Petitioner’s

unexhausted prosecutorial misconduct claim, arising from the admission of his police statements,

concerns a matter of federal law and does not appear to be plainly meritless. Lastly, there is no

evidence of intentional delay. Accordingly, a stay of the proceedings, rather than a nonprejudicial dismissal, is appropriate.

III. Conclusion

For the reasons stated, the Court concludes that Petitioner has failed to fully exhaust state

court remedies as to the claims presented in his habeas petition. The Court further concludes,

however, that dismissal of the petition could deprive Petitioner of the opportunity to seek federal

habeas relief.

Accordingly,

The Court STAYS this habeas case pending Petitioner’s proper exhaustion of state court

remedies as to his unexhausted prosecutorial misconduct claim. The stay is conditioned on

Petitioner presenting his unexhausted claim to the state courts within 60 days of this order if he

has not already done so. See Hill v. Anderson, 300 F.3d 679, 683 (6th Cir. 2002). The stay is

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further conditioned on Petitioner’s return to this Court with a motion to re-open this case, using

the same caption and case number, within 30 days of exhausting state remedies. See Palmer v.

Carlton, 276 F.3d 777, 781 (6th Cir. 2002) (adopting approach taken in Zarvela v. Artuz, 254

F.3d 374, 381 (2d Cir. 2001)). Should Petitioner fail to comply with these conditions, his case

could be subject to dismissal. This case is CLOSED for Administrative Purposes pending

compliance with these conditions. Should Petitioner wish to proceed only on the exhausted

claims and withdraw the unexhausted claim, he may move to re-open this case and proceed on

the exhausted claims within 30 days of the filing date of this order.

IT IS SO ORDERED.

s/Marianne O. Battani 

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

Dated: January 27, 2009

CERTIFICATE OF SERVICE

I hereby certify that on the above date a copy of this Opinion and Order was

served upon Marvin Lavel Johnson via U.S. Mail. 

s/Bernadette M. Thebolt

Case Manager

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