UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PHILLIP BROWN,

Petitioner, 

v.

SHIRLEE HARRY,

Respondent. 

 /

Case Number: 09-11679

HON. PATRICK J. DUGGAN

OPINION AND ORDER (1) DENYING PETITIONER’S MOTION TO HOLD HIS

PETITION IN ABEYANCE, (2) DISMISSING WITHOUT PREJUDICE THE

PETITION FOR A WRIT OF HABEAS CORPUS AND,

(3) DENYING WITHOUT PREJUDICE PETITIONER’S MOTIONS FOR 

EVIDENTIARY HEARING AND FOR APPOINTMENT OF COUNSEL

At a session of said Court, held in the U.S.

District Courthouse, Eastern District 

of Michigan, July 13, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

On May 4, 2009, Petitioner Phillip Brown (“Petitioner”) filed an application for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 2003 convictions in

Oakland County Circuit Court for first-degree premeditated murder in violation of

Michigan Compiled Laws Section 750.316(1)(a) and felonious assault in violation of

Michigan Compiled Laws Section 750.82. The trial court sentenced Petitioner to

concurrent terms of life without the possibility of parole and 23 to 48 months

imprisonment. On the same date that he instituted this action, Petitioner filed a motion to

stay the proceedings because he has matters pending in the state courts involving two of

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his habeas claims. Petitioner also filed motions for an evidentiary hearing and for the

appointment of counsel.

Procedural Background

Following a jury trial in the Oakland County Circuit Court, Petitioner was

convicted of the above-listed offenses. Petitioner filed a direct appeal in which he raised

a number of challenges to his convictions. The Michigan Court of Appeals denied relief

on those claims and affirmed Petitioner’s convictions. People v. Brown, No. 247313

(Mich. Ct. App. Aug. 19, 2004). Petitioner sought leave to appeal with the Michigan

Supreme Court, but the Court denied his application on June 28, 2005. People v. Brown,

472 Mich. 937, 698 N.W.2d 393 (2005).

On June 12, 2006, Petitioner filed a motion for relief from judgment in the trial

court in which he raised six additional claims. The trial court denied the motion on

August 10, 2006. The court denied reconsideration on March 29, 2007. Petitioner filed

an application for leave to appeal with the Michigan Court of Appeals, which the court

denied. People v. Brown, No. 283419 (Mich. Ct. App. May 12, 2008). The Michigan

Court of Appeals denied reconsideration on July 15, 2008. Petitioner also sought leave to

appeal with the Michigan Supreme Court, but the Court denied his application on March

23, 2009. People v. Brown, 483 Mich. 906, 762 N.W.2d 517 (2009).

Petitioner filed a habeas corpus complaint in the Manistee County Circuit Court on

November 4, 2008, in which he raised a jurisdictional claim for the first time. The

Manistee County Circuit Court denied the complaint on November 14, 2008. The court

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denied Petitioner’s request for reconsideration on March 13, 2009. The Michigan Court

of Appeals denied Petitioner’s request for habeas relief on April 8, 2009. On April 13,

2009, Petitioner filed his habeas corpus action in the Michigan Supreme Court. That

action remains pending. On April 20, 2009, Petitioner also filed a delayed motion for

new trial in the Oakland County Circuit Court raising a jury instruction claim for the first

time. That motion also remains pending.

Petitioner filed the instant petition for habeas relief on May 4, 2009, alleging

numerous claims including the jurisdictional defect claim and jury instruction claim that

currently are pending in the state courts.

Analysis

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. See 28

U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S. Ct. 1728, 1732

(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). State prisoners in

Michigan must raise each claim in the Michigan Court of Appeals and in the Michigan

Supreme Court before seeking federal habeas corpus relief. See Manning v. Alexander,

912 F.2d 878, 881 (6th Cir. 1990). The burden is on the petitioner to prove exhaustion. 

Rust, 17 F.3d at 160.

In this case, Petitioner states that he has a habeas action pending in the Michigan

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Supreme Court concerning his jurisdictional claim and a delayed motion for new trial

pending in the Oakland County Circuit Court concerning his jury instruction claim. 

Petitioner must complete the state court process on all of his claims before seeking habeas

relief in federal court. See Witzke v. Bell, No. 07-CV-15315, 2007 WL 4557674 (E.D.

Mich. Dec. 20, 2007); Harris v. Prelisnik, No. 06-CV-15472, 2006 WL 3759945 (E.D.

Mich. Dec. 20, 2006). The state courts must first be given a fair opportunity to rule upon

all of Petitioner’s habeas claims before he can present those claims to this Court. 

Moreover, while Petitioner’s pending state proceedings do not concern most of his

current claims, those proceedings could result in the reversal of his convictions, thus

mooting the federal questions presented in this case. See Humphrey v. Scutt, No. 08-CV14605, 2008 WL 4858091, *1 (E.D. Mich. Nov. 5, 2008); Porter v. White, No.

01-CV-72798-DT, 2001 WL 902612, *3 (E.D. Mich. Aug. 6, 2001); Szymanski v. Martin,

99-CV-76196-DT, 2000 WL 654916, *2 (E.D. Mich. April 13, 2000).

Petitioner asks the Court to hold his petition in abeyance pending the resolution of

his state court proceedings. 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 containing unexhausted claims

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, 125 S. Ct. 1528, 1535 (2005).

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While the time in which a habeas case has been pending in federal court is not statutorily

tolled, see Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that a federal habeas

petition is not an “application for State post-conviction or other collateral review” within the

meaning of 28 U.S.C. § 2244(d)(2) so as to statutorily toll the limitations period), such time is

equitably tolled by the Court. See, e.g., Johnson v. Warren, 344 F. Supp. 2d 1081, 1088-89

(E.D. Mich. 2004).

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In other words, Petitioner must file his habeas petition with this Court within three

months after a final adverse ruling on his state habeas petition and on his motion for a

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Petitioner, however, has not shown the need for a stay. First, the one-year statute

of limitations set forth in the Antiterrorism and Effective Death Penalty Act (“AEDPA”),

28 U.S.C. § 2244(d)(1), does not pose a problem for Petitioner as long as he promptly

returns to this Court following the completion of his state court proceedings. The oneyear limitations period did not begin to run until September 26, 2005 – 90 days after the

conclusion of Petitioner’s direct appeal. See Bronaugh v. Ohio, 235 F.3d 280, 285 (6th

Cir. 2000). Less than nine months passed before Petitioner filed his motion for relief

from judgment in the state trial court. The one-year period was then tolled during the

time in which his motion was pending in the state courts– that being from June 12, 2006

to March 23, 2009. The one-year period is also tolled for the time in which his state

habeas and new trial motions have been pending in the state courts, as long as those cases

have been properly filed. See 28 U.S.C. § 2244(d)(2); see also Carey v. Saffold, 536 U.S.

214, 219-221 (2002).1

 Petitioner’s state habeas action has been pending since November

4, 2008. His delayed motion for new trial has been pending since April 20, 2009. 

Petitioner filed the instant petition on May 4, 2009. He thus has more than three months

remaining of the one-year period in which to seek federal habeas review.2

 Petitioner has

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new trial.

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sufficient time in which to fully exhaust his issues in the state courts and return to federal

court.

Additionally, while there is no indication that Petitioner’s failure to previously

pursue his jurisdiction and jury instruction claims resulted from “intentionally dilatory

tactics, see Rhines, 544 U.S. at 278, 125 S. Ct. at 1535, Petitioner has not shown good

cause for failing to fully exhaust all of his claims in the state courts before seeking federal

habeas review. Lastly, Petitioner’s jurisdiction and jury instruction claims appear to

concern matters of state law which do not ordinarily warrant federal habeas relief. Under

such circumstances, a stay is unwarranted and a non-prejudicial dismissal of the petition

is appropriate.

Conclusion

For the reasons stated, the Court concludes that Petitioner has two matters pending

in the state courts concerning the convictions at issue in this case and that a stay of the

proceedings is unwarranted. Accordingly, the Court DENIES Petitioner’s motion to hold

the habeas petition in abeyance and DISMISSES WITHOUT PREJUDICE the petition

for a writ of habeas corpus. Given this decision, the Court DENIES WITHOUT

PREJUDICE Petitioner’s motions for an evidentiary hearing and for the appointment of

counsel. The Court makes no determination as to the merits of Petitioner’s claims.

SO ORDERED.

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s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copy to:

Phillip Brown, #271566

Muskegon Correctional Facility

2400 S. Sheridan 

Muskegon, MI 49442

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