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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL WELLMAN, #441682,

Petitioner,

CASE NO. 2:09-CV-13678 

v. HONORABLE PATRICK J. DUGGAN

LLOYD RAPELJE,

Respondent.

____________________________________/

OPINION AND ORDER GRANTING PETITIONER’S MOTION FOR NONPREJUDICIAL DISMISSAL AND DISMISSING WITHOUT PREJUDICE THE

HABEAS PETITION

Michigan prisoner Michael Wellman (“Petitioner”) has filed a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. In 2008, Petitioner pleaded no contest to

first-degree child abuse in the Circuit Court for Clinton County, Michigan, and was

sentenced to 10 to 15 years imprisonment. In his pending petition, he raises claims

concerning sex offender registration, the validity of his plea, the effectiveness of trial

counsel, the legality of his arrest, the lack of medical evidence in the case, and his

sentencing proceedings. Respondent has filed an answer to the petition contending that it

should be denied. The matter presently is before the Court on Petitioner’s motion to

voluntarily dismiss his petition so that he may return to the state courts and exhaust

additional issues concerning the validity of his arrest and extradition warrants, the scoring

of offense variables, the use of a pre-sentence report and victim impact statement at

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sentencing, the victim’s identification, the effectiveness of trial counsel, his eligibility for

boot camp, and the application of the two-thirds rule at sentencing.

Petitioner previously moved to stay the proceedings and hold this case in abeyance

in order to exhaust the above-listed additional issues. This Court denied Petitioner’s

request, finding that he had sufficient time with respect to the relevant statute of

limitations to do so and return to federal court. The Court informed Petitioner that if he

wished to have the court dismiss the present petition so that he may pursue additional

issues in the state courts, he could move for a non-prejudicial dismissal. Given that

Petitioner has now moved for a non-prejudicial dismissal so that he may exhaust

additional issues in the state courts and that he has sufficient time within the one-year

statute of limitations applicable to federal habeas actions to do so and return to the federal

court, dismissal of the present petition is appropriate.

Should Petitioner wish to seek federal habeas relief following the exhaustion of

state court remedies, he is reminded that he must file a new habeas petition in federal

court within the time remaining on the one-year period of limitations set forth in 28

U.S.C. § 2244(d). The limitations period will be tolled during the time in which any

properly filed post-conviction or collateral actions are pending in the state courts, see 28

U.S.C. § 2244(d)(2); however, Petitioner should be aware that the statute of limitations

will continue to run during any time it takes him to file such motions in the state trial

court and any time it takes him to file a new habeas petition once he has exhausted his

state court remedies.

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Accordingly,

IT IS ORDERED, that Petitioner’s motion for non-prejudicial dismissal of his

petition is GRANTED;

IT IS FURTHER ORDERED, that Petitioner’s application for a writ of habeas

corpus is DISMISSED WITHOUT PREJUDICE.

Date:March 28, 2011

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies to:

Michael Wellman, #441682

Ojibway Correctional Facility

N5705 Ojibway Road

Marenisco, MI 49947-9771

AAG Raina I. Korbakis

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