Vert #477877 v. Bauman

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
______
SHAWN VERT,
Petitioner,
v.
CATHERINE BAUMAN,
Respondent.
____________________________/
Case No. 2:24-cv-218
Honorable Jane M. Beckering
OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. By order
entered January 27, 2025, the Court ordered Respondent to answer the petition and file the Rule 5
materials. (ECF No. 6.) On July 25, 2025, Respondent filed a motion to dismiss the petition for
failure to exhaust state court remedies. (ECF No. 7.) Respondent also filed the Rule 5 materials.
(ECF No. 8.) On November 4, 2025, Petitioner submitted a motion acknowledging his failure to
exhaust state court remedies with respect to certain issues. (ECF No. 10.) Petitioner asked the
Court to stay these proceedings, and hold them in abeyance, to permit Petitioner to exhaust his
state court remedies as to all issues raised in his petition. (Id.)
For the reasons set forth below, the Court will grant Petitioner’s motion to stay these
proceedings and hold them in abeyance. Moreover, the Court will deny Respondent’s motion to
dismiss the petition for failure to exhaust state court remedies without prejudice to renewal of the
motion following the reopening of these proceedings.
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Discussion
I. 	Factual Allegations
Petitioner Shawn Vert is incarcerated with the Michigan Department of Corrections at the
Thumb Correctional Facility (TCF) in Lapeer, Michigan. Petitioner is presently serving three
sentences imposed in three different criminal prosecutions—two following jury convictions in the
Chippewa County Circuit Court and one following Petitioner’s guilty plea in the Oakland County
Circuit Court. Petitioner is serving a sentence of 35 to 60 years for first-degree criminal sexual
conduct (CSC-I) on the conviction at issue in the present petition
Petitioner appealed his conviction to the Michigan Court of Appeals. By opinion issued on
August 24, 2023, the court of appeals affirmed Petitioner’s conviction. Petitioner filed an
application for leave to appeal to the Michigan Supreme Court. That court denied leave by order
entered January 30, 2024.
On December 23, 2024, Petitioner filed his habeas corpus petition raising six grounds for
habeas relief. Several of Petitioner’s grounds include multiple claims that his constitutional rights
were violated.
II. Exhaustion of State Court Remedies
Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust
remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that state
courts have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a
petitioner’s constitutional claim. Id. at 844, 848; see also Picard v. Connor, 404 U.S. 270, 275–77
(1971); Duncan v. Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982).
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To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to
all levels of the state appellate system, including the state’s highest court. O’Sullivan, 526 U.S. at
845; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483
(6th Cir. 1990). The district court can and must raise the exhaustion issue sua sponte when it clearly
appears that habeas claims have not been presented to the state courts. See Prather v. Rees, 822
F.2d 1418, 1422 (6th Cir. 1987); Allen, 424 F.2d at 138–39.
Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th
Cir. 1994). Petitioner acknowledges that he has not exhausted his state court remedies with regard
to every issue he raises in this Court. (Pet’r’s Mot., ECF No. 10, PageID.2576–2577.)
An applicant has not exhausted available state remedies if he has the right under state law
to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). Petitioner has at
least one available procedure by which to raise the issues he has presented in this application. He
may file a motion for relief from judgment under Mich. Ct. R. 6.500 et seq. Under Michigan law,
one such motion may be filed after August 1, 1995. Mich. Ct. R. 6.502(G)(1). Petitioner has not
yet filed his one allotted motion. Therefore, the Court concludes that he has at least one available
state remedy.
To properly exhaust his claim, Petitioner must file a motion for relief from judgment in the
Chippewa County Circuit Court. If his motion is denied by the circuit court, Petitioner must appeal
that decision to the Michigan Court of Appeals and the Michigan Supreme Court. O’Sullivan, 526
U.S. at 845; Hafley, 902 F.2d at 483 (“‘[P]etitioner cannot be deemed to have exhausted his state
court remedies as required by 28 U.S.C. § 2254(b) and (c) as to any issue, unless he has presented
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that issue both to the Michigan Court of Appeals and to the Michigan Supreme Court.’”) (citation
omitted).
Habeas petitions by state prisoners are subject to the one-year statute of limitations
provided in 28 U.S.C. § 2244(d)(1), which became effective on April 24, 1996, as part of the
Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, 110 Stat. 1214 (AEDPA).
Section 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of
(A) 	the date on which the judgment became final by the conclusion of
direct review or the expiration of the time for seeking such review;
(B) 	the date on which the impediment to filing an application created by
State action in violation of the Constitution or laws of the United States is
removed, if the applicant was prevented from filing by such State action;
(C) 	the date on which the constitutional right asserted was initially
recognized by the Supreme Court, if the right has been newly recognized
by the Supreme Court and made retroactively applicable to cases on
collateral review; or
(D) 	the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244(d)(1).
In most cases, § 2244(d)(1)(A) provides the operative date from which the one-year
limitations period is measured. Under that provision, the one-year limitations period runs from
“the date on which the judgment became final by the conclusion of direct review or the expiration
of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner appealed the judgment
of conviction to the Michigan Court of Appeals and the Michigan Supreme Court.
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As noted above, the Michigan Supreme Court denied Petitioner’s application for leave to
appeal on January 30, 2024. Petitioner did not petition for certiorari to the United States Supreme
Court. The one-year limitations period, however, did not begin to run until the 90-day period in
which Petitioner could seek such review in the United States Supreme Court had expired. See
Lawrence v. Florida, 549 U.S. 327, 332–33 (2007); Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.
2000). The 90-day period expired on April 29, 2024. Petitioner, therefore, had one year from that
date, or until April 29, 2025, to file a timely § 2254 petition. Petitioner filed on December 23,
2024, long before the period of limitation had expired. But the period of limitation has now
expired. In Duncan v. Walker, 533 U.S. 167, 181–82 (2001), the Supreme Court concluded that
the limitations period is not tolled during the pendency of a federal habeas petition. Thus, as of
April 30, 2025, any new claims would be considered untimely.
Under Rose v. Lundy, 455 U.S. 509, 522 (1982), district courts are directed to dismiss
petitions including unexhausted claims without prejudice in order to allow petitioners to return to
state court to exhaust remedies. However, because the statute of limitations has expired, dismissal
without prejudice might effectively preclude future federal habeas review. To avoid that harsh
result, the Sixth Circuit adopted a stay-and-abeyance procedure to be applied to petitions that
include unexhausted claims. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002).
In Palmer, the Sixth Circuit held that when the dismissal of a mixed petition could
jeopardize the timeliness of a subsequent petition, the district court should dismiss only the
unexhausted claims and stay further proceedings on the remaining portion until the petitioner has
exhausted his claims in the state court. Id.; see also Rhines v. Weber, 544 U.S. 269, 277 (2007)
(approving stay-and-abeyance procedure); Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002).
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The Palmer Court has indicated that thirty days is a reasonable amount of time for a
petitioner to file a motion for post-conviction relief in state court, and another thirty days is a
reasonable amount of time for a petitioner to return to federal court after he has exhausted his state-
court remedies.1 Palmer, 276 F.3d at 781; see also Griffin, 308 F.3d at 653 (holding that sixty days
amounts to a mandatory period of equitable tolling under Palmer). The limitation period has now
expired. As a result, were the Court to dismiss Petitioner’s § 2254 petition without prejudice for
lack of exhaustion, the dismissal would jeopardize the timeliness of any subsequent petition. See
Palmer, 276 F.3d at 781.
In light of the foregoing, the Court will stay these proceedings and hold them in abeyance
to permit Petitioner to exhaust his state court remedies. Petitioner shall, within thirty days of the
date of this Opinion and the accompanying Order, file his motion for relief from judgment in the
Chippewa County Circuit Court. This action will be stayed, and held in abeyance, until Petitioner
files a motion to amend his petition to include any subsequently exhausted claims—such motion
must be filed not later than 30 days after a final decision by the Michigan Supreme Court on
Petitioner’s unexhausted claims, and shall include a description of the newly exhausted claims and
the dates and substance of the decision at each step of state-court review. If Petitioner fails to
comply with the deadlines imposed in this order, the Court may dismiss the petition.
1 The running of the statute of limitations is tolled while “a properly filed application for State
post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending.” 28 U.S.C. § 2244(d)(2). The statute of limitations is tolled from the filing of an
application for state post-conviction or other collateral relief until a decision is issued by the state
supreme court. Lawrence v. Florida, 549 U.S. 327 (2007). The statute is not tolled during the time
that a Petitioner petitions for writ of certiorari in the United States Supreme Court. Id. at 332. Thus,
so long as Petitioner’s request for collateral review is pending, the time will not count against him.
But, until he files his motion and after the Michigan Supreme Court rules on his application for
leave to appeal to that court, the statute of limitations will run.
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Petitioner’s motion to stay these proceedings (ECF No. 10) will be granted; Respondent’s
motion to dismiss the petition as unexhausted (ECF No. 7) will be denied without prejudice. The
Court will order this action to be administratively closed until such time as Petitioner files a motion
to amend his petition in accordance with the procedures set forth above.
Dated: 	March 31, 2026 	/s/ Jane M. Beckering
Jane M. Beckering
United States District Judge
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