Zahraie v. McCullik

Filing 4

OPINION and ORDER Summarily Dismissing 1 Petition for Writ of Habeas Corpus, Denying 3 MOTION to Stay Petition, Denying Certificate of Appealability, and Denying Permission to Proceed on Appeal In Forma Pauperis. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JAMSHID BAKSHI ZAHRAIE,
Petitioner,

Case No. 1:17-cv-10875
Hon. Thomas L. Ludington

v.
MARK MCCULLIK,
Respondent.
_________________________________/
OPINION AND ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS WITHOUT PREJUDICE, DENYING MOTION TO STAY
PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING
PERMISSION TO PROCEED ON APPEAL IN FORMA PAUPERIS
State of Michigan prisoner Jamshid Bakshi Zahraie, (“Petitioner”), has filed a petition for
writ of habeas corpus under 28 U.S.C. § 2254, ECF No. 1, and a motion to stay the case pending
exhaustion of state post-conviction remedies. ECF No. 3. The petition challenges Petitioner’s
March 13, 2014, Tuscola Circuit Court convictions for racketeering, Mich. Comp. Laws §
750.159i, and related narcotics offenses. The trial court sentenced Petitioner as a third-time
habitual offender to 15 to 40 years for the racketeering conviction and lesser concurrent terms for
the narcotics offenses.
The petition raises fourteen claims: (1) Petitioner was convicted under an
unconstitutionally vague statute, (2) Petitioner was charged under an “inapplicable” statute, (3)
Petitioner was denied the effective assistance of appellate counsel, (4) Petitioner was denied the
effective assistance of trial counsel, (5) there was outrageous governmental conduct during the
investigation, (6) there was an illegal search and seizure, (7) Petitioner was denied the right to
present a complete defense, (8) insufficient evidence was presented at trial to sustain Petitioner’s

convictions, (9) the government exercised racially motivated peremptory strikes of jurors, (10)
the trial court erroneously admitted evidence at trial, (11) the jury instructions were erroneous,
(12) the trial judge was biased against Petitioner and committed misconduct, (13) the cumulative
effect of these errors rendered Petitioner’s trial unfair, and (14) Petitioner is entitled to
resentencing. Petitioner asserts in his petition that he is presenting all of these claims to the state
trial court in a motion for relief from judgment.
I.
According to the allegations in the petition, and as confirmed by the Michigan One Court
of Justice Website, Petitioner’s direct appeal ended in the state courts when his motion to
reconsider the denial of his application for leave to appeal was denied by the Michigan Supreme
Court on June 28, 2016. People v. Zahraie, No. 152212 (Mich. Sup. Ct. June 28, 2016).1
Petitioner filed a petition for a writ of certiorari in the United States Supreme Court, but it was
denied on October 3, 2016. Zahraie v. Michigan, 137 S. Ct. 115 (2016). Petitioner’s motion
requests that the case be stayed and held in abeyance while he completes post-conviction review
of all of his habeas claims in the state courts.
II.
Before habeas relief may be granted 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. See O’Sullivan, 526 U.S. at 842; Duncan v. Henry, 513 U.S.

1

See coa.courts.mi.gov/. Public records and government documents, including those available from reliable sources
on the Internet, are subject to judicial notice. See United States ex. rel. Dingle v. BioPort Corp., 270 F. Supp. 2d
968, 972 (W.D. Mich. 2003). A federal district court is also permitted to take judicial notice of another court’s
website. See, e.g., Graham v. Smith, 292 F. Supp. 2d 153, 155 n.2 (D. Me. 2003).

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364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270,
275-77 (1971). To fulfill the exhaustion requirement, a petitioner must have fairly presented his
federal claims to all levels of the state appellate system. Duncan, 513 U.S. at 365–66; Wagner v.
Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990).
Here, Petitioner states that he is currently in the process of exhausting his claims in the state
courts in a state post-conviction review proceeding under Michigan Court Rule 6.501 et seq.
The district court can and must raise the exhaustion issue on its own 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.
Under Rose v. Lundy, 455 U.S. 509, 522 (1982), district courts are directed to dismiss
without prejudice petitions containing unexhausted claims in order to allow petitioners to return
to state court to exhaust remedies. However, since the habeas statute was amended to impose a
one-year statute of limitations on habeas claims, see 28 U.S.C. § 2244(d)(1), dismissal without
prejudice often effectively precludes future federal habeas review. Petitioner’s application is
subject to the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1). Under §
2244(d)(1)(A), 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.”
Here, Petitioner completed direct review of his conviction when the United States
Supreme Court denied his petition for writ of certiorari on October 3, 2016. See Lawrence v.
Florida, 549 U.S. 327, 332–33 (2007); Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000).
The statute of limitations for filing this case therefore began to run the next day. Thus,
approximately six months have passed on the statute of limitations, leaving Petitioner with

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another six months on the limitations period in which to file his motion for relief from judgment
in the state trial court. Under §2244(d)(2), Petitioner’s properly filed state post-conviction review
proceeding will act to toll the limitations period. Therefore, Petitioner is not in danger of running
afoul of the statute of limitations, and there is no basis for staying this case rather than dismissing
it without prejudice. See Rhines v. Weber, 544 U.S. 269, 278 (2005) (stay of habeas case requires
showing of “good cause”).
Accordingly, the petition will be summarily dismissed without prejudice. Once Petitioner
completes state post-conviction review he will have ample time—nearly half a year—to properly
file a new petition.
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. Rule 11 of the Rules
Governing Section 2254 Proceedings now requires a district court to “issue or deny a certificate
of appealability when it enters a final order adverse to the applicant.” 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).
In this case, reasonable jurists would not debate the conclusion that the petition should be
summarily dismissed without prejudice. Therefore, a certificate of appealability is denied.
Permission to appeal in forma pauperis is also denied because any appeal of this decision would
be frivolous and could not be taken in good faith. 28 U.S.C. § 1915(a)(3).
IV.
Accordingly, it is ordered that the petition for a writ of habeas corpus, ECF No. 1, is
DISMISSED without prejudice.

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It is further ORDERED that Petitioner’s motion to stay, ECF No. 3, is DENIED.
It is further ORDERED that a certificate of appealability and permission to appeal in
forma pauperis are DENIED.

Dated: March 30, 2017

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 or party of record herein by electronic means or first
class U.S. mail on March 30, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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