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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DEWAYNE SPAN,

Petitioner,

CASE NO. 09-CV-13513 

v. HONORABLE PAUL D. BORMAN

BLAINE LAFLER,

Respondent.

 /

OPINION AND ORDER DISMISSING PROTECTIVE HABEAS CORPUS PETITION,

DENYING PETITIONER’S MOTION FOR APPOINTMENT OF COUNSEL,

AND DENYING A CERTIFICATE OF APPEALABILITY

AND LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Dewayne

Span (“Petitioner”) has filed a “Protective Habeas Corpus Petition” challenging his convictions for

second-degree murder, Mich. Comp. Laws § 750.317, felon in possession of a firearm, Mich. Comp.

Laws § 750.224f, and possession of a firearm during the commission of a felony, Mich. Comp. Laws

§ 750.227b, which were imposed following a jury trial in the Wayne County Circuit Court in 2005.

Petitioner was sentenced to 30 to 50 years imprisonment on the murder conviction, a concurrent

term of one to five years imprisonment on the felon in possession conviction, and a consecutive term

of two years imprisonment on the felony firearm conviction. Petitioner has also filed a motion for

the appointment of counsel. For the reasons stated, the Court dismisses without prejudice the

protective habeas corpus petition and denies Petitioner’s motion for appointment counsel. The Court

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also denies a certificate of appealability and leave to proceed on appeal in forma pauperis.

II. Facts and Procedural History

Petitioner’s convictions arise from the shooting death of Tywan Lawrence outside a Detroit

bar on November 11, 2004. Following his convictions and sentencing, Petitioner filed a direct

appeal with the Michigan Court of Appeals raising claims concerning judicial bias, a limitation on

cross-examination, prosecutorial misconduct, and the denial of funds for an identification expert.

The Michigan Court of Appeals affirmed Petitioner’s convictions. People v. Span, No. 264030,

2007 WL 28422 (Mich. Ct. App. Jan. 4, 2007). Petitioner filed an application for leave to appeal

with the Michigan Supreme Court raising the same claims, as well as a request for remand on claims

concerning the suppression of evidence, res gestae witnesses, and the effectiveness of trial and

appellate counsel as to those issues. The Michigan Supreme Court denied leave to appeal in a

standard order. People v. Span, 478 Mich. 926, 732 N.W.2d 889 (June 26, 2007).

Petitioner states that he filed a motion for relief from judgment with the state trial court on

June 20, 2008 raising claims concerning the suppression of evidence, perjured testimony, the

effectiveness of trial and appellate counsel, the racial composition of the jury, the waiver of his right

to testify, cumulative error, and actual innocence. The trial court denied the motion on September

17, 2008 and denied reconsideration on December 11, 2008.

Petitioner dated the instant petition on August 31, 2009. He states that he is “now preparing”

his application for leave to appeal in the Michigan Court of Appeals, as well as a motion for remand

on a jury verdict form claim. Petitioner states that his habeas petition contains both exhausted and

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Petitioner does not set forth his actual habeas claims in his petition, but presumably he

intends to pursue relief on the claims he raised in the state courts on direct appeal and collateral

review of his convictions.

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unexhausted claims1 and asks the Court to hold the petition in abeyance due to concerns about the

one-year statute of limitations applicable to federal habeas actions.

III. 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). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.

In this case, Petitioner acknowledges that he has filed (or intends to file) a “mixed” habeas

petition, containing both exhausted and unexhausted claims. He further states that he is the process

of appealing the state trial court’s denial of his motion for relief from judgment concerning the

convictions challenged in this petition. Petitioner must complete the state court process before

seeking habeas relief in this 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). Federal habeas law provides that a habeas petitioner is only entitled to relief if he can

show that the state court adjudication of his claims resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law as determined by the

Supreme Court of the United States. See 28 U.S.C. § 2254(d). The state courts must first be given

a fair opportunity to rule upon Petitioner’s habeas claims before he can present those claims to this

Court. Otherwise, the Court cannot apply the standard found at 28 U.S.C. § 2254. Even if

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Petitioner’s motion/appeal does not involve some or all of his current habeas claims, that proceeding

may result in the reversal of his convictions on another ground, thus mooting the federal questions

presented. See Humphrey v. Scutt, No. 08-CV-14605, 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 motion

for relief from judgment in the state appellate courts. A federal district court has discretion to stay

mixed habeas petitions, containing both exhausted and unexhausted claims, to allow a petitioner to

present his unexhausted claims to the state courts in the first instance and then return to federal court

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

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

his state court remedies in a prompt fashion. The one-year limitations period did not begin to run

until 90 days after the conclusion of his direct appeal, see Bronaugh v. Ohio, 235 F.3d 280, 285 (6th

Cir. 2000), on or about September 24, 2007. The one-year period ran until June 20, 2008 when

Petitioner filed his motion for relief from judgment in the Wayne County Circuit Court. The oneyear period was then tolled during the time in which his motion for relief from judgment was

pending, and will also be tolled for his related appeals, as long as they are properly filed. See 28

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While the time in which a habeas case is 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). 

In this case, such federal time is inconsequential as it will be subsumed within the state appellate

period and tolled on that basis – as long as Petitioner’s appeals are properly filed.

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U.S.C. § 2244(d)(2); see also Carey v. Saffold, 536 U.S. 214, 219-221 (2002).2 Petitioner admits

that he will have approximately three months remaining of the one-year period in which to seek

habeas relief following the conclusion of state collateral review. Petitioner has 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 has engaged in “intentionally dilatory tactics,” he has not shown

good cause for failing to fully exhaust all of his potential claims in the state courts before proceeding

in federal court on habeas review. Lastly, Petitioner’s unexhausted claims (as contained in his state

court motion for relief from judgment) appear to concern matters of federal law which may warrant

further review. Under such circumstances, a stay is unwarranted and a non-prejudicial dismissal of

the petition is appropriate.

IV. Conclusion

For the reasons stated, the Court concludes that Petitioner has filed a “mixed” petition and

that he must fully exhaust all of his claims in the state courts before proceeding in federal court on

habeas review. Accordingly, the Court DISMISSES WITHOUT PREJUDICE the protective

habeas corpus petition. Given this determination, the Court also DENIES Petitioner’s motion for

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

Before Petitioner may appeal the Court’s decision, a certificate of appealability must issue.

See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue “only

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if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). When a federal district court denies a habeas claim on procedural grounds without

addressing the claim’s merits, a certificate of appealability should issue if it is shown that jurists of

reason would find it debatable whether the petitioner states a valid claim of the denial of a

constitutional right, and that jurists of reason would find it debatable whether the district court was

correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

Having considered the matter, the Court concludes that reasonable jurists could not debate

whether the Court was correct in its procedural ruling. Accordingly, the Court DENIES a certificate

of appealability. The Court further DENIES Petitioner leave to proceed on appeal in forma pauperis

as any appeal would be frivolous. See Fed. R. App. P. 24(a).

IT IS SO ORDERED.

S/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: September 14, 2009

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

September 14, 2009.

S/Denise Goodine 

Case Manager

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