Johnson v. Rapelje

Filing 8

OPINION and ORDER Dismissing Without Prejudice 1 Petition for Writ of Habeas Corpus, Denying 6 and 5 Motions to Stay, and Denying Certificate of Appealability and Permission to Proceed In Forma Pauperis on Appeal. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

DARRYL ANTHONY JOHNSON, SR.,
Petitioner,

Case Number: 12-14683
Honorable Thomas L. Ludington

v.
LLOYD RAPELJE,
Respondent.
/
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE, DENYING AS MOOT MOTIONS TO STAY PROCEEDINGS,
AND DENYING CERTIFICATE OF APPEALABILITY AND PERMISSION TO
PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Darryl Anthony Johnson, Sr., is a state inmate at the Saginaw Correctional
Facility in Freeland, Michigan. He brings this habeas case under 28 U.S.C. § 2254, challenging
his conviction for first-degree criminal sexual conduct. Petitioner has not properly exhausted his
state court remedies and his petition will be dismissed without prejudice.
I
Petitioner was convicted by a jury in Wayne County Circuit Court of first-degree
criminal sexual conduct. People v. Johnson, No. 295980, 2011 WL 1565459, at *1 (Mich. Ct.
App. Apr. 26, 2011). On January 4, 2010, he was sentenced to twenty-two to thirty-five years’
imprisonment.
Petitioner filed an appeal of right in the Michigan Court of Appeals, raising the following
claims: (i) denial of due process by pre-arrest delay; and (ii) trial court improperly allowed
Petitioner’s prior bank robbery conviction to be used for impeachment purposes. The Michigan
Court of Appeals affirmed the convictions. See Johnson, 2011 WL 1565459.

Petitioner filed an application for leave to appeal in the Michigan Supreme Court. He
raised the claims previously raised in the Michigan Court of Appeals and the following
additional claims: (i) ineffective assistance of trial counsel; and (ii) prosecutorial misconduct.
The Michigan Supreme Court denied Petitioner’s application for leave to appeal, People v.
Johnson, 803 N.W.2d 332 (Mich. 2011), and denied his motion for reconsideration, People v.
Johnson, 806 N.W.2d 491 (Mich. 2011).
On October 16, 2012, Petitioner filed the immediate habeas petition. He reasserts the
claims previously raised in both the Michigan Court of Appeals and Michigan Supreme Court.
II
Upon the filing of a habeas corpus petition, the Court must promptly examine the petition
to determine “if it plainly appears from the face of the petition and any exhibits annexed to it that
the petitioner is not entitled to relief.” Rule 4, Rules Governing Section 2254 cases. If the Court
determines that the petitioner is not entitled to relief, the Court shall summarily dismiss the
petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to
dismiss summarily any habeas petition that appears legally insufficient on its face.”).
A federal court may not grant habeas corpus relief to a state prisoner unless the prisoner
first exhausts his remedies in state court. O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
“Ordinarily, the state courts must have had the opportunity to pass on defendant’s claims of
constitutional violations.” Prather v. Rees, 822 F.2d 1418, 1420 (6th Cir. 1987). “This rule of
comity reduces friction between the state and federal court systems by avoiding the unseemliness
of a federal district court’s overturning a state court conviction without the state courts having
had an opportunity to correct the constitutional violation in the first instance.” O’Sullivan, 526

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U.S. at 845 (internal quotation omitted). State prisoners in Michigan must raise each claim in
both state appellate courts before seeking federal habeas corpus relief.

See Manning v.

Alexander, 912 F.2d 878, 881 (6th Cir. 1990). Petitioner bears the burden of establishing
exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Caver v. Straub, 349 F.3d 340, 345
(6th Cir. 2003).
In this case, Petitioner fails to satisfy his burden of showing exhaustion of state court
remedies. Petitioner raises two claims which were raised for the first time in his application for
leave to appeal to the Michigan Supreme Court. A defendant has failed to “fairly present” an
issue when it is raised for the first time when review is discretionary. Castille v. Peoples, 489
U.S. 346, 351 (1989). An issue is not fairly presented when it is raised for the first time in the
Michigan Supreme Court, and that court declines to exercise its right to discretionary review.
See Farley v. Lafler, 193 F. App’x 543, 549 (6th Cir. 2006). Petitioner must complete the state
court process before seeking habeas relief in federal court. See, e.g., Witzke v. Bell, No. 07-CV15315, 2007 WL 4557674 (E.D. Mich. Dec. 20, 2007); Harris v. Prelisnik, No. 06-CV-15472,
2006 WL 3759945 (E.D. Mich. Dec. 20, 2006). Federal habeas law provides that a habeas
petitioner is only entitled to relief if he can show that the state court 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 Petitioner’s habeas
claims before he can present those claims to this Court. Otherwise, the Court cannot apply the
standard found at 28 U.S.C. § 2254. Non-prejudicial dismissal of the petition is warranted under
these circumstances.

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Where a petition contains both exhausted and unexhausted claims, a district court may
dismiss, provided the court includes safeguards such that the dismissal will not jeopardize the
timeliness of a future habeas petition. Hargrove v. Brigano, 300 F.3d 717, 719–21 (6th Cir.
2002). The Court shall dismiss the petition without prejudice and the one-year limitations period
shall be tolled from the date Petitioner filed his petition, October 16, 2012, until Petitioner
returns to federal court. The tolling of the limitations period is conditioned upon Petitioner’s
“pursu[ing] his state remedies within thirty days of [this court’s Order] and return[ing] to federal
court within thirty days of exhausting his state remedies.” Id. at 718.
III
Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed unless a
certificate of appealability (COA) is issued under 28 U.S.C. § 2253. A COA may be issued
“only if the applicant has made a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). A petitioner must show “that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or that
the issues presented were adequate to deserve encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (citation omitted).
In this case, the Court concludes that reasonable jurists would not debate the Court’s
conclusion that the petition should be summarily dismissed without prejudice. Therefore, the
Court denies a certificate of appealability. The Court further concludes that Petitioner should not
be granted leave to proceed in forma pauperis on appeal, as any appeal would be frivolous. See
Fed. R. App. P. 24(a).

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IV
Accordingly, it is ORDERED that the petition for a writ of habeas corpus, ECF No. 1, is
DISMISSED without prejudice.
It is further ORDERED that a certificate of appealability is DENIED.
It is further ORDERED that permission to proceed in forma pauperis on appeal is
DENIED.
It is further ORDERED that Petitioner’s motions to stay proceedings, ECF Nos. 5 and 6,
are DENIED as moot.
Dated: May 31, 2013

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing
order was served upon each attorney of record herein by
electronic means and on Darryl Johnson #238036,
Saginaw Correctional Facility, 9625 Pierce Road
Freeland, MI 48623 by first class U.S. mail on May 31,
2013.
s/Tracy A. Jacobs
TRACY A. JACOBS

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