Dorreon D. McBride v. GREGORY SKIPPER, Warden

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 23a0166p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DORREON D. MCBRIDE,
Petitioner-Appellant,
v.
GREGORY SKIPPER, Warden,
Respondent-Appellee.
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No. 21-1042
Appeal from the United States District Court for the Eastern District of Michigan at Detroit.
No. 2:18-cv-13525—Denise Page Hood, District Judge.
Argued: October 27, 2022
Decided and Filed: August 4, 2023
Before: SILER, NALBANDIAN, and READLER Circuit Judges
_________________
COUNSEL
ARGUED: Brett Wierenga, JONES DAY, Washington, D.C., for Appellant. Autumn A. Gruss,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
ON BRIEF: Brett Wierenga, JONES DAY, Washington, D.C., for Appellant. Jared D. Schultz,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee.
_________________
OPINION
_________________
NALBANDIAN, Circuit Judge. A Michigan jury convicted Dorreon McBride of murder.
After unsuccessfully contesting his conviction in state court, he sought federal habeas relief. But
because he failed to exhaust one of his claims in state court, the district court dismissed his
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petition without prejudice. Rather than return to state court to litigate his unexhausted claim or
refile in federal court without the unexhausted claim, McBride moved to reconsider. In doing so,
he cited for the first time the Supreme Court’s decision in Rhines v. Weber, which gives courts
facing habeas petitions with both exhausted and unexhausted claims two options besides
dismissal. The district court denied his motion. McBride now argues that the district court
should have sua sponte considered alternatives to dismissal. We disagree and AFFIRM the
district court’s judgment.
I.
On June 22, 2015, following the Detroit Freedom Festival fireworks display, members of
Paul Mitchell’s family argued with a group of neighborhood men over a carelessly thrown
firecracker. The conflict escalated when a man wearing a black shirt with a red, orange, and
yellow flame design arrived and pulled out a gun. Tensions temporarily subsided when members
of the family fled to their home and the armed group walked away. But the night turned more
explosive.
Mitchell and his cousin, Otis Parker, got into Mitchell’s truck to go buy drinks. As they
drove, shots were fired, killing Mitchell. Parker recognized the man with the black shirt as one
of the shooters. Other witnesses who were present for the initial altercation identified the man in
the black shirt as Dorreon McBride.
The government charged McBride with first degree murder, assault with intent to commit
murder, carrying a concealed weapon, and carrying a firearm during the commission of a felony.
McBride went to trial in state court in December 2015. A jury convicted him on the concealed
carry charge but hung on the other charges. In a second trial in May 2016, a jury convicted
McBride on the remaining charges.
McBride appealed his convictions to the Michigan Court of Appeals. He argued that the
trial court erred in failing to admit his full police interview and that the evidence presented at
trial could not support his convictions. He also argued that his counsel was ineffective.

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While his appeal was pending, McBride filed two motions for remand requesting a
hearing (called a Ginther hearing under Michigan law) to present evidence of his counsel’s
ineffectiveness.1 The court of appeals denied both motions. McBride filed a motion for
reconsideration, which the court of appeals also denied. On January 23, 2018, the court of
appeals affirmed his convictions. People v. McBride, No. 333637, 2018 WL 521824, at *1, *6
(Mich. Ct. App. Jan. 23, 2018) (per curiam).
McBride next filed an application for leave to appeal to the Michigan Supreme Court,
which was denied. People v. McBride, 913 N.W.2d 304 (Mich. 2018) (order). McBride moved
to reconsider, filing a pro se brief in support. In this brief, he alleged for the first time that his
due process rights were violated during his pretrial detention.
The Michigan Supreme Court, however, returned this brief because McBride was
represented by counsel. On October 2, 2018, the Michigan Supreme Court denied McBride’s
motion for reconsideration. People v. McBride, 917 N.W.2d 641 (Mich. 2018) (order).
McBride’s direct appeal concluded 90 days later, on December 31, 2018. At this point, the
“availability of direct appeal to the state courts” and the United States Supreme Court had “been
exhausted.” See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). This left him with one year
to file a federal habeas claim from that date. 28 U.S.C. § 2244(d)(1).
McBride filed that habeas petition in November 2018. He challenged his convictions on
three grounds: (1) his due process and Miranda rights were violated during his arrest and
detention; (2) his trial counsel was ineffective; and (3) the trial court and Michigan Court of
Appeals erred in various evidentiary rulings. The government moved to dismiss McBride’s
petition, arguing that the first claim had not been exhausted. McBride argued that the motion
should be denied.
On September 30, 2019, the district court granted the government’s motion to dismiss all
claims without prejudice, citing the unexhausted first claim as the basis for dismissal. The court
declined to issue a certificate of appealability. Rather than refile his petition without the
1In the alternative, McBride requested that his conviction be vacated as based on insufficient evidence or
that a new trial be ordered.

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unexhausted claim or return to state court, McBride moved for reconsideration on October 11,
2019. In this motion, he argued for the first time that his exhausted claims should be allowed to
proceed under Rhines v. Weber, 544 U.S. 269 (2005). On December 1, 2020, the district court
denied the motion for reconsideration. By that time, the statute of limitations period on
McBride’s habeas petition had run.
McBride filed a timely notice of appeal and application for a certificate of appealability,
which we granted.
II.
“In reviewing a district court’s decision to dismiss a habeas petition, we typically review
its legal conclusions de novo[.]” Pirkel v. Burton, 970 F.3d 684, 691 (6th Cir. 2020). This
includes a district court’s conclusion that a habeas petitioner has not satisfied the exhaustion
requirement. Id. at 691–92.2
We review for abuse of discretion a district court’s denial of a motion to alter or amend a
judgment under Rule 59(e). Pittington v. Great Smoky Mountain Lumberjack Feud, LLC, 880
F.3d 791, 798–99 (6th Cir. 2018). And a district court abuses its discretion when it makes a clear
error of judgment or rests its decision on a legal error. See United States v. Dubrule, 822 F.3d
866, 879 (6th Cir. 2016). “We review de novo any legal conclusions the district court reached in
the course of assessing a motion under Rule 59.” Id. at 799. “The court thus addresses any
attack on the Rule 59(e) ruling as part of its review of the underlying decision.” Banister v.
Davis, 140 S. Ct. 1698, 1703 (2020).
III.
This case is about what a district court must do with habeas petitions containing
unexhausted claims. There is no dispute, for purposes of this appeal, that McBride presented a
2We review a district court’s denial of a stay of a mixed habeas petition—that is, a habeas petition with
both exhausted and unexhausted claims—for abuse of discretion. Carter v. Mitchell, 829 F.3d 455, 464 (6th Cir.
2016). But McBride didn’t ask for a stay in his initial petition. Instead, the central question presented by McBride
is a legal one: whether the district court, on its own initiative, was required to consider Rhines’s stay-and-abeyance
procedure.

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mixed petition—i.e., a petition containing exhausted and unexhausted claims.3 And there’s no
dispute that McBride, in the face of the government’s argument that he did not exhaust all of his
claims, only argued that he did exhaust all of his claims. Losing on that argument can result in
dismissal. Picard v. Connor, 404 U.S. 270, 275–76 (1971). Nevertheless, McBride now claims
that the trial court erred in failing to stay his habeas petition while he exhausted his claims or to
allow him to delete his unexhausted claims and proceed with the exhausted ones. So the
question is: must a district court consider alternatives to dismissal when a petitioner doesn’t ask
for them? The answer is no.
Historically, courts had to “dismiss habeas petitions containing both unexhausted and
exhausted claims.” Rose v. Lundy, 455 U.S. 509, 522 (1982). There were no alternatives to
dismissal. But the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established
a one-year statute of limitations on the filing of habeas corpus petitions. Matthews v.
Abramajtys, 319 F.3d 780, 787–88 (6th Cir. 2003). In response, some courts recognized
alternatives to dismissal, see, e.g., Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002)
(adopting stay-and-abeyance procedures), because the interplay between AEDPA’s one-year
statute of limitations and Lundy’s dismissal requirement created difficulties for petitioners. The
filing of a federal habeas petition does not toll the statute of limitations. Duncan v. Walker, 533
U.S. 167, 181–82 (2001). So if a district court judge dismissed a mixed petition on exhaustion
grounds close to the one-year deadline, chances are that the doors to federal court would be shut.
In Rhines, the Supreme Court held that courts may consider alternatives to dismissal. It
laid out two alternatives. First, district courts have “discretion to stay the mixed petition to allow
the petitioner to present his unexhausted claims to the state court in the first instance, and then to
return to federal court for review of his perfected petition.” Rhines, 544 U.S. at 271–72. In other
words, district courts can stay and hold in abeyance a petitioner’s claims. Id. at 277–78. This
procedure allows the petitioner to return to state court to fully litigate his unexhausted claims
while the district court holds his exhausted claims in abeyance. Id. at 275–76.
But in affording the courts discretion to follow that procedure, the Court noted that a stay
and abeyance has the potential to “undermine [AEDPA’s] twin purposes” of exhaustion and
3McBride assumes for purposes of appeal that his first claim is unexhausted.

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finality, and so “should be available only in limited circumstances.” Id. at 277. A court should
grant a stay and abeyance only when (1) “the district court determines there was good cause for
the petitioner’s failure to exhaust his claims first in state court”; (2) where the unexhausted
claims are not “plainly meritless”; and (3) where “there is no indication that the petitioner
engaged in intentionally dilatory litigation tactics.” Id. at 277–78.
In addition, the Supreme Court recognized a second option. When a petitioner asks the
district court for a stay-and-abeyance but the court finds a stay-and-abeyance to be inappropriate,
it “should allow the petitioner to delete the unexhausted claims and to proceed with the
exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner’s
right to obtain federal relief.” Id. at 278; see Lundy, 455 U.S. at 520 (noting that petitioners
can delete unexhausted claims). Post-Rhines, we’ve said that the district court can do “one of
four things” when faced with a mixed petition:
“(1) dismiss the mixed petition in its entirety, . . . (2) stay the petition and hold it
in abeyance while the petitioner returns to state court to raise his unexhausted
claims, . . . (3) permit the petitioner to dismiss the unexhausted claims and
proceed with the exhausted claims, . . . or (4) ignore the exhaustion requirement
altogether and deny the petition on the merits if none of the petitioner’s claims
ha[ve] any merit.” Harris v. Lafler, 553 F.3d 1028, 1032–33 (6th Cir. 2009).
True, Rhines affirms that courts have alternatives to dismissal. But Rhines doesn’t
necessarily answer the question before us today. That is because Rhines addressed whether a
district court, when asked for a stay, had the authority to grant one. Rhines says yes, assuming
the three-part stay-and-abeyance test is met. Put another way, a lower court “err[s] to the extent
it conclude[s] that stay and abeyance is always impermissible.” Rhines, 544 U.S. at 279.4
4Shortly after Rhines, the Supreme Court vacated and remanded a decision for further consideration in light
of Rhines. See Akins v. Kenney, 341 F.3d 681 (8th Cir. 2003), vacated and remanded, 125 S. Ct. 1723 (2005). Pre-
Rhines, the Eighth Circuit had determined that a district court has “no authority” to hold a habeas petition in
abeyance “absent truly exceptional circumstances.” Akins, 341 F.3d at 686 (citation omitted). The petitioner didn’t
meet that high bar, so the Eighth Circuit concluded that the district court didn’t abuse its discretion in “not granting a
stay sua sponte.” Id. Neither the Supreme Court nor the Eighth Circuit on remand revisited the question of a district
court’s authority to grant a stay sua sponte post-Rhines, though the Eighth Circuit did remand to the district court,
stating that “Akins must be given an opportunity” to demonstrate that he meets the stay-and-abey factors. Akins v.
Kenney, 410 F.3d 451, 456 (8th Cir. 2005); see Akins, 125 S. Ct. 1723.

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Here, the district court did not need to raise alternatives to dismissal on its own volition.
In this context, we do not require district courts to make arguments that petitioners—even pro se
petitioners—fail to make. Federal district court judges have “no obligation” to warn a pro se
petitioner about how a circuit’s stay-and-abey procedure or AEDPA’s 1-year statute of
limitations would impact his mixed petition. Pliler v. Ford, 542 U.S. 225, 231 (2004).
Also relevant is the Supreme Court’s pre-Rhines decision in Pliler. There, the Court
rejected the Ninth Circuit’s then-procedure for managing mixed petitions. See Pliler, 542 U.S. at
231. The Ninth Circuit provided a three-step stay-and-abeyance procedure and required district
courts to raise this procedure sua sponte and to inform petitioners about their options with regard
to mixed petitions. Id. at 230–31. Without speaking to the propriety of the stay-and-abeyance
procedure itself, the Court rejected the Ninth Circuit’s practice of requiring district courts to
inform litigants of their options because “[d]istrict judges have no obligation to act as counsel or
paralegal to pro se litigants.” Id. at 231. It continued: “Requiring district courts to advise a pro
se litigant [on federal habeas procedure] would undermine district judges’ role as impartial
decisionmakers.” Id.
Three principles from Pliler are informative. First, in this context, “[d]istrict judges have
no obligation to act as counsel or paralegal to pro se litigants.” Id. Second, we do not require
district courts to take up “potentially burdensome, time-consuming, and fact-intensive”
investigations. Id.; see also Aruanno v. Sherrer, 277 F. App’x 155, 158 (3d Cir. 2008)
(recognizing that a district court is not required to “perform . . . tasks” to help petitioner
“uncover” arguments it can assert in support of a stay). Third, a district court runs the risk of
misleading petitioners when it takes on the role of an advocate. Pliler, 542 U.S. at 231. For
example, maybe the use of a stay-and-abeyance procedure would not benefit a petitioner with
weak unexhausted claims. Id. at 232. “And it is certainly the case that not every litigant seeks to
maximize judicial process.” Id. The burden ultimately lies with a petitioner to choose a path and
advocate for it. Compare Lundy, 455 U.S. at 520 (noting that a petitioner can always amend his
petition to delete the unexhausted claims), with Pliler, 542 U.S. at 231 (noting that federal
district court judges are not required to explain the details of federal habeas procedure); see also
Rockwell v. Yukins, 217 F.3d 421, 424 (6th Cir. 2000) (“[Petitioner] is ultimately the one

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responsible for the status of [his] petition, not the district court. Having knowingly added an
unexhausted claim to [his] petition, [petitioner] cannot now lay blame at the feet of the district
court.”).
Under these principles, Petitioner’s argument for sua sponte consideration is not well
taken. Indeed, after Rhines, the Ninth Circuit interpreted Pliler “to make[] it clear that district
courts are not required to consider sua sponte the stay-and-abeyance procedure.” Robbins v.
Carey, 481 F.3d 1143, 1148 (9th Cir. 2007). The court reasoned that “there is no difference
between ‘considering’ a procedure and notifying a party about the possibility of that procedure,
because in both cases the district court must sua sponte inform the party of the procedure, partly
so that the petitioner may decide which option to pursue.” Id. at 1149. So requiring a court to
sua sponte “consider” a procedure is barred by Pliler in the same way that informing a party is.
Id. at 1148 (“Such a mandatory action by the trial judge falls within the set of ‘chores’ targeted
by the Supreme Court in Pliler.”). And finally, the court concluded that Rhines “does not detract
from the holding of Pliler.” Id. at 1149.
Our interpretation of Pliler is consistent with how we view other non-jurisdictional-but-
threshold barriers.5 For example, a district court is “permitted, but not obliged, to consider, sua
sponte, the timeliness of a state prisoner’s habeas petition.” Day v. McDonough, 547 U.S. 198,
209 (2006); see also Thomas v. Romanowski, 362 F. App’x 452, 456 (6th Cir. 2010) (explaining
that judges are not required to warn litigants of AEDPA time limits); Torres v. Davis, 416 F.
App’x 480, 481 (6th Cir. 2011) (same).6 And “Courts of Appeals have unanimously held that, in
appropriate circumstances, courts, on their own initiative, may[, but are not required to,] raise a
petitioner’s procedural default,” Day, 547 U.S. at 206 (collecting cases); Trest v. Cain, 522 U.S.
87, 89–90 (1997).
5Exhaustion is not a jurisdictional requirement. See Harris, 553 F.3d at 1032.
6See also Outler v. United States, 485 F.3d 1273, 1282 n.4 (11th Cir. 2007) (“[P]ro se litigants, like all
others, are deemed to know of the one-year statute of limitations. Indeed, any such requirement of actual notice
would virtually eviscerate the statute of limitations. Thus, the law does not require a court, sua sponte, to remind a
pro se litigant that he has only one year to file his claim.”); Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006)
(“In light of the holdings in Rhines and Pliler, [a decision allowing the reopening of a previously dismissed habeas
petition] cannot be read to require the reopening of a voluntarily dismissed habeas case where the one-year time
limit of Rule 60(b) has expired.”).

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McBride argues that our Circuit “has repeatedly directed district courts to consider the
Rhines [stay-and-abeyance] factors before dismissing mixed petitions.” (Pet. Brief at 17.) But
the cases that McBride points to aren’t in the posture of his case. In those cases, we remanded
for other reasons, like when we determined for the first time on appeal that certain claims were
unexhausted, see Robinson v. Horton, 950 F.3d 337, 347 (6th Cir. 2020), or because the district
court should have granted a motion to amend a habeas petition with a claim that was not plainly
meritless, see Cowan v. Stovall, 645 F.3d 815, 819–21 (6th Cir. 2011). And while we’ve
discussed the options that district courts can consider on remand, we’ve left it to the district court
and the parties to determine the best course of action. See id. At most, we’ve encouraged
district courts to consider stay and abeyance where we’ve found that the unexhausted claims
likely were not plainly meritless. See Wagner v. Smith, 581 F.3d 410, 419–20 (6th Cir. 2009);
Cowan, 645 F.3d at 820–21; Hickey v. Hoffner, 701 F. App’x 422, 426 (6th Cir. 2017). But
that’s hardly a command to consider Rhines sua sponte.
McBride also says that even where a stay is inappropriate, Rhines requires district courts
to allow petitioners to delete their unexhausted claims. (Pet. Brief at 17.) Two points in
response. First, it is unclear why the district court, by dismissing McBride’s petition without
prejudice for want of exhaustion with three months remaining on the limitations clock did not
“allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims”
under Rhines. 544 U.S. at 278. A petitioner “can always amend [his] petition to delete the
unexhausted claims,” Lundy, 455 U.S. at 520, but a district court is not required to counsel a
petitioner to do so, Pliler, 542 U.S. at 231. Second, as we’ve discussed, we read Rhines to
trigger a series of obligations once a petitioner requests a stay. See supra at 6. McBride didn’t
request a stay and therefore did not trigger any Rhines obligations for the district court. See
Thompson v. Sec’y for Dep’t of Corr., 425 F.3d 1364, 1366 (11th Cir. 2005) (“[T]he district
court offered the petitioner a choice . . . to delete the unexhausted claims[.] . . . But that choice
should only be offered if a stay is unwarranted. Because we cannot discern from the district
court’s order whether it considered the three Rhines factors, we vacate its order dismissing the
habeas petition and remand for further consideration.”); cf. Van Durmen v. Smith, No. 13-1522,
2014 WL 11070972, at *3 (6th Cir. Dec. 12, 2014) (remanding because the district court’s
judgment against a petitioner’s stay request suffered from “conflicting findings and conclusions”

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where it adopted the magistrate judge’s recommendation to dismiss the petition but the
magistrate judge determined that dismissal without prejudice could impair the petitioner’s right
to federal relief).7
And, in any event, it’s not clear that dismissal here “unreasonably impair[ed] [McBride’s]
right to obtain federal relief” such that deleting unexhausted claims from his petition would be
favored. Rhines, 544 U.S. at 278. McBride had a three-month window to refile or perfect his
petition. Cf. Banks v. Jackson, 149 F. App’x 414, 421–22 (6th Cir. 2005) (involving a habeas
claim where the statute of limitations ran); Dixon, 847 F.3d at 718 (same). He did neither, even
though the district court provided guidance on how to proceed in state court. (R. 12, E.D. Mich.
Order, p. 4.)
All told, district courts do not have to consider and inform petitioners of alternatives to
dismissal when petitioners do not raise them.
IV.
Putting aside whether the district court needed to raise Rhines on its own, McBride
argues that the district court erroneously believed that, when faced with a mixed petition, its only
course of action is dismissal. He claims this alleged misapprehension amounted to an abuse of
discretion. See Campanella v. Com. Exch. Bank, 137 F.3d 885, 892–93 (6th Cir. 1998) (finding
the district court abused its discretion where it did not recognize that it had supplemental
jurisdiction). For support, he points to the government’s motion to dismiss, which said that the
court had to dismiss his entire petition under Lundy, without mentioning the alternatives offered
in Rhines.
But we don’t automatically transfer a litigant’s error or omission to a court. In the cases
that McBride cites to support his argument, we found that a district court either erroneously
7McBride cites Banks v. Jackson in support of his argument. 149 F. App’x 414, 422 (6th Cir. 2005). But
the passage he quotes mischaracterizes Rhines to say that “if the district court determines that a stay is inappropriate,
the district court must allow the petitioner to delete the unexhausted claims,” id. (emphasis added), when Rhines
instead says that, in such a circumstance, the court “should allow the petitioner to delete the unexhausted claims and
to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner’s
right to obtain federal relief.” Rhines, 544 U.S. at 278 (emphasis added).

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reasoned or misapplied the law. See, e.g., United States v. Gibbs, 506 F.3d 479, 487–88 (6th Cir.
2007); United States v. Jackson, 244 F. App’x 727, 728 (6th Cir. 2007); Campanella, 137 F.3d at
892–93. Here, the district court never stated that it had to dismiss McBride’s claims based on
Lundy. Although it did not explicitly discuss the alternatives laid out in Rhines, that does not
mean that it was unaware that there were alternatives. All McBride relies on is the following
statement: “Petitioner is required to exhaust state court remedies, but has not done so. The
motion [to dismiss the petition] will be granted.” (R. 12, E.D. Mich. Order, p. 4.) Without more,
there is nothing to suggest that the court misapprehended its authority or abused its discretion.
V.
Following the court’s dismissal of his petition, McBride filed a motion for
reconsideration under Rule 59(e), which allows a court to alter or amend a judgment. Fed. R.
Civ. P. 59(e); see Cont’l Cas. Co. v. Indian Head Indus., Inc., 941 F.3d 828, 833 (6th Cir. 2019)
(discussing the proper grounds for a Rule 59(e) motion). McBride argues that the district court’s
failure to consider alternatives to dismissal was a clear error of judgment. Alternatively, he
argues that the district court’s decision resulted in “manifest injustice” because it left him in
prison for life with no recourse to have his federal claims heard. (Pet. Brief at 25.)
In McBride’s motion for reconsideration, he cited Rhines, suggesting for the first time
that the district court should have considered alternatives to dismissal. Generally, a court need
not consider a new argument on a motion to reconsider. See Banister, 140 S. Ct. at 1703
(“In particular, courts will not address new arguments or evidence that the moving party could
have raised before the decision issued.”). For this reason alone, McBride’s argument is not well
taken. Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008) (“[A] petitioner fil[ing] a
Rule 59(e) motion . . . may request only that the district court reconsider matters actually raised
before it. This is because, as this court has repeatedly held, Rule 59(e) motions cannot be used to
present new arguments that could have been raised prior to judgment.”).
And even if we were to construe McBride’s motion for reconsideration according to the
liberal standards afforded to pro se petitioners, (Pet Rep. Br. at 14), the district court did not
commit a clear error of law. This is because a district court does not have an obligation to

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consider alternatives to dismissal when they aren’t presented by the petitioner, see supra p. 7, 9,
so a district court’s failure to do so cannot be a clear error of law.
There is also nothing to suggest that affirming the district court’s decision would work a
“manifest injustice” on McBride. Cont’l Cas. Co., 941 F.3d at 833 (citation omitted). McBride
takes issue with the fact that, by the time the district court ruled on his motion for
reconsideration, the statute of limitations had run. But absent exceptional circumstances, it is not
a manifest injustice to deny a motion to reconsider, particularly where the petitioner was aware
of and had the opportunity to correct flaws in his filings. See Leisure Caviar, LLC v. U.S. Fish &
Wildlife Serv., 616 F.3d 612, 616 (6th Cir. 2010) (noting that if plaintiffs were liberally allowed
to amend their complaints after adverse judgment, “plaintiffs could use the court as a sounding
board to discover holes in their arguments, then ‘reopen the case by amending their complaint to
take account of the court’s decision’” (citation omitted)); see also Clark v. United States, 764
F.3d 653, 662 (6th Cir. 2014) (explaining that when the defendant entered a nolo contendere plea
and a guilty plea, “claims first presented in [the] postjudgment second motion to amend do not
demonstrate that her conviction or indictment constituted ‘manifest injustice.’” (citation
omitted)); Rockwell, 217 F.3d at 425 (requiring dismissal where the district court erroneously
permitted the petitioner to include unexhausted claims, since both parties and the court knew that
the claims were unexhausted). McBride had three months to correct flaws in his petition and
chose not to do so.
Finally, McBride’s complaints about the length of his sentence and his trial history are
unconvincing. McBride was duly tried and convicted by a jury of his peers. That one jury was
hung does not negate his conviction. It is true that he had the right to contest errors in his trial at
the federal level via a habeas petition. Still, he needed to go through the proper channels to do
so. It is due to his own failure to (1) exhaust his claims and (2) make an argument for stay and
abeyance that he cannot now present his claims. After the district court’s September 2019
dismissal, McBride had three months to either return to state court or delete his unexhausted
claim and refile in federal court. See also Holbrook, 833 F.3d at 613; 28 U.S.C. § 2244(d)(1).
He chose not to do so, but to instead raise a new Rhines argument in a motion to reconsider. We

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may sympathize with his circumstances, but we cannot say the district court abused its
discretion.
VI.
For these reasons, we affirm the district court’s decision to dismiss McBride’s claim
without prejudice.

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