UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BENJAMIN HARRY WRIGHT,

Petitioner,

v. CASE NO. 09-11886

HONORABLE AVERN COHN

NICK LUDWICK,

Respondent.

______________________________/

ORDER GRANTING PETITIONER’S MOTION FOR STAY

AND

IMPOSING TIME LIMITS ON PETITIONER FOR EXHAUSTING HIS CLAMS AND

RETURNING TO THIS COURT

AND

CLOSING CASE FOR ADMINISTRATIVE PURPOSES

I.

This is a habeas case under 28 U.S.C. § 2254. Petitioner challenges his

convictions for two counts of first-degree criminal sexual conduct. See Mich. Comp.

Laws § 750.520b(1)(a) (sexual penetration of a person under the age of 13). Petitioner

claims that (1) a detective’s testimony concerning the complainant’s pretrial interview

was inadmissible hearsay and (2) the prosecutor improperly suggested during closing

arguments that she personally believed Petitioner was guilty. 

Before the Court is Petitioner’s motion to hold his habeas petition in abeyance

while he exhausts state remedies for four new claims, which allege: (1) prosecutorial

misconduct (stating that Petitioner was lying) (2) ineffective assistance of trial counsel

(failure to object to certain evidence); (3) ineffective assistance of appellate counsel
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(failure to raise critical issues on appeal); and (4) violation of the Double Jeopardy

Clause. For the reasons that follow, the motion will be granted.

II.

The doctrine of exhaustion of state remedies requires state prisoners to present

all their habeas claims to the Michigan Court of Appeals and to the Michigan Supreme

Court before raising their claims in a federal habeas corpus petition. See 28 U.S.C. §

2254(b)(1)(A) and § 2254(c); O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Wagner

v. Smith, 581 F.3d 410, 414 (6th Cir. 2009). Petitioner has exhausted state remedies

for his two pending claims, but not for the four new claims that he seeks to present to

this Court. If the Court were to permit Petitioner to supplement his habeas petition with

the unexhausted claims, his pleading would become a “mixed” petition of exhausted and

unexhausted claims. 

Habeas petitions containing even one unexhausted issue are subject to

dismissal, Rose v. Lundy, 455 U.S. 509, 522 (1982), and dismissal of the pending

petition could preclude future consideration of Petitioner’s claims due to the expiration of

the one-year statute of limitations. See 28 U.S.C. § 2244(d). Faced with a similar

dilemma, some courts have adopted a “stay and abeyance” approach. Rhines v.

Weber, 544 U.S. 269, 275 (2005). Under this approach, courts stay the habeas petition

while the inmate returns to state court to pursue additional state remedies for the

unexhausted claims. Id. As explained in Duncan v. Walker, 533 U.S. 167 (2001), 

there is no reason why a district court should not retain jurisdiction over a

meritorious claim and stay further proceedings pending the complete

exhaustion of state remedies. Indeed, there is every reason to do so

when [28 U.S.C. § 2254(b)(2)] gives a district court the alternative of

simply denying a petition containing unexhausted but nonmeritorious
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claims . . . and when the failure to retain jurisdiction would foreclose

federal review of a meritorious claim because of the lapse of [the] 1-year

limitations period.

Id. at 182-83 (Stevens, J., concurring in part and concurring in the judgment). After the

state court completes its review of the petitioner’s new claims, the federal court can lift

its stay and allow the inmate to proceed in federal court. Rhines, 544 U.S. at 275-76. 

Stay and abeyance are available only in limited circumstances, such as when (1) there

was good cause for the petitioner’s failure to exhaust his claims first in state court, (2)

the unexhausted claims are not plainly meritless, and (3) the petitioner is not engaged in

abusive litigation tactics. Id. at 277-78. 

Petitioner does not appear to be engaged in abusive litigation tactics, and his

proposed new claims are not plainly meritless. In addition, Petitioner alleges that his

appellate attorney was “cause” for not raising his new claims on direct review. 

The Court concludes that it would not be an abuse of discretion to hold this case

in abeyance while Petitioner pursues additional remedies in state court. 

III.

Accordingly, for the reasons stated above, Petitioner’s motion to hold the petition

in abeyance is GRANTED. 

The stay is conditioned on Petitioner presenting his unexhausted claims to the

trial court in a motion for relief from judgment within sixty days (60) of the date of this

order. If Petitioner is unsuccessful in state court, he may move to re-open this case,

provided that he does so within sixty days (60)of exhausting state remedies for his new

claims. 
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Finally, the Clerk of the Court shall close this case for statistical purposes. This

administrative closing shall not be construed as a dismissal or adjudication of

Petitioner’s exhausted claims. 

SO ORDERED.

 s/ Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

Dated: February 9, 2010

I hereby certify that a copy of the foregoing document was mailed to Benjamin Wright 

404876, St. Louis Correctional Facility, 8585 N. Croswell Road, St. Louis, MI 48880 and

to the attorneys of record on this date, February 9, 2010, by electronic and/or ordinary

mail.

 s/ Julie Owens 

Case Manager, (313) 234-5160