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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

THOMAS MARIO RANGE,

Petitioner,

v. No. 2:09-CV-10945

MARY BERGHUIS,

Respondent.

________________________________/

ORDER GRANTING PETITIONER’S “MOTION TO HOLD IN 

ABEYANCE,” STAYING PROCEEDINGS, VACATING THE “ORDER 

REQUIRING A RESPONSE,” AND ADMINISTRATIVELY CLOSING CASE

Petitioner Thomas Mario Range, a state prisoner currently incarcerated at the

Earnest C. Brooks Correctional Facility in Muskegon Heights, Michigan, has filed a

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition,

Petitioner challenges the constitutionality of his conviction for first-degree home

invasion, as found by a jury following trial in the Wayne County Circuit Court in 2006. 

Petitioner was sentenced as a fourth habitual offender to 15 to 30 years imprisonment. 

He completed direct appeals in the state courts on January 8, 2008. Now pending

before the court is Petitioner’s “Motion to Hold in Abeyance,” filed contemporaneously to

his habeas petition on March 13, 2009. In his motion, Petitioner explains that he wants

to return to the state courts and exhaust his remedies as to additional claims. Because

the court will grant Petitioner’s motion, the court will stay the proceedings, vacate the

“Order Requiring a Response,” and administratively close the case.

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The doctrine of exhaustion of state remedies requires state prisoners to “fairly

present” their claims as federal constitutional issues in the state courts before raising

those claims in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A), (c);

O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); McMeans v. Brigano, 228 F.3d 674,

681 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Federal law

provides that a habeas petitioner is only entitled to relief if he can show that the state

courts’ 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 all of Petitioner’s habeas claims before he

can present those claims to this court. Otherwise, this court is unable to apply the

statutory standard.

The exhaustion requirement is satisfied if a prisoner invokes one complete round

of the state’s established appellate review process, including a petition for discretionary

review to a state supreme court. O’Sullivan, 526 U.S. at 845. A prisoner “‘fairly

presents’ his claims to the state courts by citing a provision of the Constitution, federal

decisions using constitutional analysis, or state decisions employing constitutional

analysis in similar fact patterns.” Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993). 

A Michigan prisoner must present each ground to both Michigan appellate courts before

seeking federal habeas relief. See Mohn v. Bock, 208 F.2d 796, 800 (E.D. Mich. 2002);

see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The petitioner bears the

burden of showing that he has exhausted state remedies. Rust, 17 F.3d at 160.

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In his motion, Petitioner states that all of his current habeas claims have been

exhausted in the state courts, but he wishes to pursue collateral review on additional

claims concerning the effectiveness of trial and appellate counsel, his confrontation

rights, exculpatory evidence, the admission of evidence, and the timeliness of his

arraignment in the state courts and then proceed in federal court on habeas review as

necessary. A federal district court has discretion to stay a mixed habeas petition to

allow a petitioner to present unexhausted claims to the state courts 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 oneyear statute of limitations applicable to federal habeas actions poses a concern. Stay

and abeyance is only appropriate when the petitioner demonstrates “good cause” for

the failure to exhaust state court remedies before proceeding in federal court, the

petitioner has not engaged in intentionally dilatory litigation tactics, and the unexhausted

claims are not “plainly meritless.” Id. at 277.

In this case, Petitioner has shown the need for a stay. His additional claims are

unexhausted, and the one-year limitations period applicable to habeas actions could

present a problem if the court were to dismiss the petition to allow for further exhaustion

of state remedies. See 28 U.S.C. § 2244(d)(1). Petitioner’s convictions became final

ninety days after the Michigan Supreme Court denied leave to appeal – on or about

April 7, 2008. He dated the instant petition March 10, 2009. Thus, only a few weeks of

the one-year period remain. Additionally, Petitioner appears to raise a newlydiscovered evidence issue that may have been unknown to him during his prior state

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proceedings, and he claims that trial and appellate counsel were ineffective for failing to

raise certain claims. Because these unexhausted claims concern federal constitutional

law and are not “plainly meritless,” Petitioner has shown good cause for previously

failing to present his unexhausted claims to the state courts. In addition, there is no

evidence of intentional delay on the part of Petitioner. Therefore, the court will grant

Petitioner’s motion and stay the proceedings. 

Because there is no need for a response to Petitioner’s petition at this time, the

court will also vacate the “Order Requiring a Response” and direct the Clerk of the

Court to administratively close the case. Accordingly,

IT IS ORDERED that Petitioner’s “Motion to Hold in Abeyance” [Dkt. # 3] is

GRANTED, and this case is STAYED. The stay is conditioned on Petitioner presenting

his unexhausted claims to the state courts within sixty (60) days of this order if he has

not already done so. See Hill v. Anderson, 300 F.3d 679, 683 (6th Cir. 2002). The stay

is further conditioned on Petitioner’s return to this court with an amended petition, using

the same caption and case number, within sixty (60) days of exhausting his state court

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

taken in Zarvela v. Artuz, 254 F.3d 374, 381 (2d Cir. 2001)). Should Petitioner fail to

comply with these conditions, his case may be subject to dismissal.

IT IS FURTHER ORDERED that the “Order Requiring a Response” [Dkt. # 2] is

VACATED.

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Finally, IT IS ORDERED that the Clerk of the Court is DIRECTED to

administratively close this matter pending compliance with the conditions of this order. 

Nothing in this order shall be considered a dismissal or disposition of this matter.

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: April 23, 2009

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, April 23, 2009, by electronic and/or ordinary mail.

s/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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