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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ERIC CRENSHAW,

Petitioner, Civil No. 2:09-CV-13753

HONORABLE NANCY G. EDMUNDS

v. UNITED STATES DISTRICT JUDGE

NICK LUDWICK,

Respondent,

_________________________________/

OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT

OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE.

Eric Crenshaw, (“Petitioner”), presently confined at the St. Louis

Correctional Facility in St. Louis, Michigan, filed a pro se petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his

conviction for possession of 50-450 grams of cocaine, M.C.L.A.

333.7403(2)(a)(iii); maintaining a drug house, M.C.L.A. 333.7405(d); and being a

fourth felony habitual offender, M.C.L.A. 769.12. Petitioner has now filed a

motion to hold the petition in abeyance to permit him to file a post-conviction

motion in the state courts to raise an additional claim that is not included in the

current petition. For the reasons stated below, the Court will hold the petition in

abeyance and will stay the proceedings under the terms outlined below in the

opinion to permit petitioner to return to the state courts to exhaust his additional

claim, failing which the petition shall be dismissed without prejudice. The Court

will also administratively close the case

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 Petitioner indicates in his motion that respondent has argued that petitioner has not properly

exhausted his third claim with the state courts. However, respondent has yet to file any pleading with this

Court. Additionally, petitioner’s original habeas petition raised only the two claims that he presented to the

Michigan Court of Appeals on his direct appeal. It therefore appears that petitioner’s third claim would be

a new claim that has yet to be raised either before this Court or the state courts. 

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I. Background

Petitioner was convicted of the above offenses following a jury trial in the

Jackson County Circuit Court. Petitioner’s conviction was affirmed on appeal.

People v. Crenwshaw, No. 274238 (Mich.Ct.App. June 12, 2008); lv. den. 482

Mich. 1035, 757 N.W.2d 88 (2008). 

On May 11, 2009, petitioner filed a petition for writ of habeas corpus, in

which he seeks habeas relief on the two grounds that he raised in the Michigan

courts on his direct appeal. 

Petitioner has now filed a motion hold the habeas petition in abeyance so

that he can return to the Jackson County Circuit Court to present a third claim in a

post-conviction motion for relief from judgment. 1

II. Discussion

A federal district court has the authority to abate or dismiss a federal

habeas action pending resolution of state post-conviction proceedings. See

Brewer v. Johnson, 139 F. 3d 491, 493 (5th Cir. 1998). However, in order to stay

federal proceedings and hold a habeas petition in abeyance pending resolution of

state court proceedings, there must be exceptional or unusual circumstances.

See Sitto v. Bock, 207 F. Supp. 2d 668, 676 (E.D. Mich. 2002). Federal district

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courts are authorized to stay fully exhausted federal habeas petitions pending the

exhaustion of other claims. See Butler v. Booker, No. 2009 WL 1010919, * 2

(E.D. Mich. April 14, 2009); Moritz v. Lafler, No. 2008 WL 783751 (E.D. Mich.

March 19, 2008)(both citing Anthony v. Cambra, 236 F. 3d 568, 575 (9th Cir.

2000); Tran v. Bell, 145 F. Supp. 2d 939, 941-42 (W.D. Tenn. 2001); Hill v.

Mitchell, 30 F. Supp. 2d 997, 1000 (S.D. Ohio 1998)). 

The Court will grant petitioner’s motion to hold the petition in abeyance

while he returns to the state courts to exhaust his additional claim or claims. In

this case, the outright dismissal of the petition, albeit without prejudice, might

result in preclusion of consideration of the petitioner’s claims in this Court due to

the expiration of the one year statute of limitations contained in the Antiterrorism

and Effective Death Penalty Act (AEDPA). See 28 U.S.C. § 2244(d)(1). A

common circumstance calling for abating a habeas petition arises when the

original petition was timely filed, as was the case here, but a second, exhausted

habeas petition would be time barred by the AEDPA’s statute of limitations. See

Hargrove v. Brigano, 300 F. 3d 717, 720-21 (6th Cir. 2002). The U.S. Supreme

Court, in fact, has suggested that a habeas petitioner who is concerned about the

possible effects of his state post-conviction filings on the AEDPA’s statute of

limitations could file a “protective” petition in federal court and then ask for the

petition to be held in abeyance pending the exhaustion of state post-conviction

remedies. See Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005)(citing Rhines v.

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Weber, 544 U.S. 269, 278 (2005)). 

However, even where a district court determines that a stay is appropriate

pending exhaustion of state court remedies, the district court “should place

reasonable time limits on a petitioner’s trip to state court and back.” Rhines, 544

U.S. at 278. To ensure that there are no delays by petitioner in exhausting his

state court remedies, this Court will impose upon petitioner time limits within

which he must proceed with his state court post-conviction proceedings. See

Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002). 

Petitioner’s method of properly exhausting his claim in the state courts

would be through filing a motion for relief from judgment with the Jackson County

Circuit Court under M.C.R. 6.502. A trial court is authorized to appoint counsel

for petitioner, seek a response from the prosecutor, expand the record, permit

oral argument, and hold an evidentiary hearing. M.C.R. 6.505-6.507, 6.508 (B)

and (C). Denial of a motion for relief from judgment is reviewable by the Michigan

Court of Appeals and the Michigan Supreme Court upon the filing of an

application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. Nasr

v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997). . Petitioner, in fact, is

required to appeal the denial of his post-conviction motion to the Michigan Court

of Appeals and the Michigan Supreme Court in order to properly exhaust the

claims that he would raise in his post-conviction motion. See e.g. Mohn v. Bock,

208 F. Supp. 2d 796, 800 (E.D. Mich. 2002).

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III. ORDER

It is ORDERED that petitioner may file a motion for relief from judgment

with the state court within sixty (60) days of receipt of this Court’s order. If

petitioner fails to file a motion for relief from judgment with the state courts by that

date, the Court will dismiss his petition without prejudice.

If petitioner files a motion for relief from judgment, he shall notify this Court

that such motion papers have been filed in state court. The case will then be held

in abeyance pending the petitioner's exhaustion of the claims. Petitioner shall refile a habeas petition within sixty (60) days after the conclusion of the state

court post-conviction proceedings. Petitioner is free at that time to file an

amended habeas petition which contains any newly exhausted claims.

To avoid administrative difficulties, the Court ORDERS the Clerk of Court

to CLOSE this case for statistical purposes only. Nothing in this order or in the

related docket entry shall be considered a dismissal or disposition of this matter.

See Sitto, 207 F. Supp. 2d at 677. 

It is further ORDERED that upon receipt of a motion to reinstate the

habeas petition following exhaustion of state remedies, the Court may order the

Clerk to reopen this case for statistical purposes.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

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Dated: October 19, 2009

I hereby certify that a copy of the foregoing document was served upon counsel

of record on October 19, 2009, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager

:

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