UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ELIJAH MIDGETT,

Petitioner,

v. Case No. 09-cv-13654

Honorable Thomas L. Ludington

CINDI CURTIN,

Respondent.

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OPINION AND ORDER 

GRANTING PETITIONER’S MOTION TO STAY PETITION FOR WRIT OF HABEAS

CORPUS AND ADMINISTRATIVELY CLOSING THE CASE

On September 15, 2009, Petitioner Elijah Midgett filed a pro se petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Petitioner, a state inmate currently incarcerated at Oaks

Correctional Facility in Manistee, Michigan, is challenging his convictions for two counts of

operating a vehicle under the influence of liquor causing death, Mich.Comp.Laws § 257.625(4), and

two counts of operating a motor vehicle with a suspended license causing death, Mich.Comp.Laws

§ 257.904(4). Before the Court is Petitioner’s request to hold his habeas petition in abeyance in

order to permit him an opportunity to exhaust his newly discovered claims. (Dkt. # 3.)

State prisoners must exhaust available state remedies for each of the claims presented in a

habeas petition before seeking a federal writ of habeas corpus. 28 U.S.C. § 2254(b)(1). Petitioner

states that he recently discovered new claims which are essential to his pending habeas petition.

However, he has not exhausted those claims in state court, and, therefore, he seeks a stay to permit

exhaustion of those claims by filing a motion for relief from judgment in the trial court.

A federal court may stay a federal habeas petition and hold further proceedings in abeyance

pending resolution of state court post conviction proceedings, provided there is good cause for
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failure to exhaust the claims and that the unexhausted claims are not “plainly meritless.” Rhines v.

Weber, 544 U.S. 269, 278 (2005). Petitioner Contends that his unexhausted claims were not

presented in state court because they are newly discovered. Petitioner has asserted good cause for

failing to present those claims in state court, and he has demonstrated that he has not engaged in

intentionally dilatory tactics. See Rhines, 544 U.S. at 277-78. Therefore, the court will grant the

request and stay further proceedings in this matter pending Petitioner’s exhaustion of his claims in

the state courts.

Michigan Court Rule 6.502(G)(1) generally permits a defendant to file only one motion for

relief from judgment. It does not appear that Petitioner filed any post conviction motions. Therefore,

an avenue for exhaustion remains available to Petitioner in state court.

When 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 Petitioner does not delay in exhausting his state

court remedies, the court imposes upon Petitioner time limits within which he must proceed. See

Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). Petitioner must present his claims in state

court within sixty days from the date of this order. Id. Further, he must ask this court to lift the stay

within sixty days of exhausting his state court remedies. Id. If the conditions of the stay are not met,

“the stay may later be vacated nunc pro tunc as of the date the stay was entered, and the petition may

be dismissed.” Id.

Accordingly, it is ORDERED that Petitioner’s request to hold his habeas petition in

abeyance [dkt. # 3] is GRANTED. If Petitioner does not file a motion for relief from judgment with

the state trial court within sixty days from the date of this order, the court will dismiss the petition
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for writ of habeas corpus without prejudice. Petitioner shall file a motion to lift the stay and an

amended petition in this court within sixty days after the conclusion of the state court proceedings.

It is further ORDERED that, to avoid administrative difficulties, the Clerk of Court shall

close this case for statistical purposes only. Nothing in this order or in the related docket entry shall

be considered a dismissal of this matter. Upon receipt of a motion to lift the stay following

exhaustion of state remedies, the court may order the Clerk to reopen this case for statistical

purposes.

s/Thomas L. Ludington 

THOMAS L. LUDINGTON

United States District Judge

Dated: February 8, 2010

PROOF OF SERVICE

The undersigned certifies that a copy of the foregoing order was served

upon each attorney or party of record herein by electronic means or first

class U.S. mail on February 8, 2010.

s/Tracy A. Jacobs 

TRACY A. JACOBS