Zahraie v. Balcarcel

Filing 16

OPINION and ORDER Denying the 13 Motion for a Stay and the 15 Application to Proceed Without Prepaying Fees and Costs and Dismissing the Most Recent 14 Petition Without Prejudice. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JAMSHID BAKSHI ZAHRAIE,
Petitioner,
Case Number 1:17-cv-13131
Hon. Thomas L. Ludington

v.
ERICK BALCARCEL,
Respondent.
________________________________________/

OPINION AND ORDER DENYING THE MOTION FOR A STAY [13] AND THE
APPLICATION TO PROCEED WITHOUT PREPAYING FEES AND COSTS [15]
AND DISMISSING THE MOST RECENT PETITION [14] WITHOUT PREJUDICE
Petitioner Jamshid Bakshi Zahraie, a state prisoner at the Thumb Correctional Facility in
Lapeer, Michigan, has filed his second pro se habeas corpus petition before this Court challenging
his Tuscola County convictions for racketeering, Mich. Comp. Laws § 750.159i, and related
narcotics offenses. ECF. No. 14. Petitioner has also filed a motion to hold his habeas petition in
abeyance, ECF No. 13, and an application to proceed without prepaying fees and costs, ECF No.
15. The case was previously closed because Petitioner had not exhausted state remedies for his
claims. ECF No. 9. Petitioner continues to pursue state remedies. Accordingly, there is no basis
for re-opening his case and staying the proceedings while Petitioner exhausts his state remedies.
His motion for a stay will be denied and his most recent petition will be dismissed without
prejudice.
I.
Following a jury trial in Tuscola County Circuit Court, Petitioner was convicted of:
conducting an enterprise through a pattern of racketeering activity, Mich. Comp. Laws §

750.159i(1); unlawful possession of a controlled substance with intent to deliver, Mich. Comp.
Laws §§ 333.7212(1)(e) and 333.7401(2)(b)(ii); unlawful manufacture of a controlled substance,
Mich. Comp. Laws §§ 333.7212(1)(e) and 333.7401(2)(b)(ii); unlawful delivery of a controlled
substance, Mich. Comp. Laws §§ 333.7212(1)(e) and 333.7401(2)(b)(ii); unlawful possession of
a controlled substance, Mich. Comp. Laws §§ 333.7212(1)(e) and 333.7403(2)(b)(ii); and
maintaining a drug house, Mich. Comp. Laws §§ 333.7405(1)(d) and 333.7406. On May 2, 2014,
the trial court sentenced Petitioner as a habitual offender to a term of fifteen to forty years in prison
for the racketeering conviction and to lesser concurrent terms for the remaining convictions.
In an appeal as of right, Petitioner argued that: (1) the catchall language of Mich. Comp.
Laws § 333.7201(1)(e)(x) is unconstitutionally vague; (2) the evidence was insufficient to sustain
his conviction for conducting a criminal enterprise; (3) the trial court erred by admitting evidence
of prior purchases of synthetic marijuana from Petitioner’s stores; (4) he was denied due process
of law because no hearing was held to determine the existence of his prior convictions; (5) his right
of confrontation was violated by the admission of hearsay testimony; (6) the prosecutor committed
misconduct by eliciting testimony from an expert witness that XLR-11 is a Schedule I controlled
substance; and (7) the trial court’s refusal to admit a laboratory report denied him the right to
present a defense. The Michigan Court of Appeals rejected Petitioner’s arguments and affirmed
his convictions in an unpublished, per curiam opinion. See People v. Zahraie, No. 321835, 2015
WL 4169311 (Mich. Ct. App. July 9, 2015).
Petitioner alleges that he raised the same seven claims in an application for leave to appeal
in the Michigan Supreme Court. The State Supreme Court remanded Petitioner’s case to the trial
court for a determination of whether the trial court would have imposed a materially different
sentence under the sentencing procedure described in People v. Lockridge, 870 N.W.2d 502 (Mich.

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2015). The State Supreme Court denied leave to appeal in all other respects. See People v.
Zahraie, 875 N.W.2d 212 (Mich. 2016). On June 28, 2016, the Michigan Supreme Court denied
reconsideration. People v. Zahraie, 880 N.W.2d 569 (Mich. 2016). On October 3, 2016, the United
States Supreme Court denied certiorari. See Zahraie v. Michigan, 137 S. Ct. 115 (2016).
Meanwhile, on August 30, 2016, the trial court held a sentencing hearing, as ordered by
the Michigan Supreme Court, and affirmed its initial sentence in an oral decision. Petitioner
appealed the trial court’s ruling, but the Michigan Court of Appeals dismissed his claim of appeal
for lack of jurisdiction because the trial court had not entered a final judgment or order after its
hearing on August 30, 2016. See People v. Zahraie, No. 334853 (Mich. Ct. App. Oct. 12, 2016).
On November 29, 2016, the trial court issued a final order in which it declined to re-sentence
Petitioner, but granted him a new claim of appeal and appointed appellate counsel for him.
On March 20, 2017, as the sentencing matter was progressing through the state courts,
Petitioner filed his first habeas corpus petition and a motion to stay the case pending exhaustion
of state remedies (Case No. 17-10875). Petitioner raised fourteen claims: (1) he was convicted
under an unconstitutionally vague statute; (2) he was charged under an “inapplicable” statute; (3)
he was denied the effective assistance of appellate counsel; (4) he was denied the effective
assistance of trial counsel; (5) there was outrageous governmental conduct during the
investigation; (6) he was subjected to illegal searches and seizures; (7) he was denied the right to
present a complete defense; (8) insufficient evidence was presented at trial to sustain his
convictions; (9) the government exercised racially motivated peremptory strikes of jurors; (10) the
trial court erroneously admitted certain evidence at trial; (11) the jury instructions were erroneous;
(12) the trial judge was biased against him and committed misconduct; (13) the cumulative effect
of the errors rendered his trial unfair; and (14) he was entitled to re-sentencing. The Court

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summarily dismissed the petition without prejudice and denied the motion for a stay as
unnecessary because Petitioner was still exhausting state remedies and he was not in danger of
running afoul of the habeas statute of limitations. See Zahraie v. McCullik, No. 1:17-cv-10875
(E.D. Mich. Mar. 30, 2107). Petitioner moved for reconsideration, but the Court denied his motion
on August 29, 2017. See id., ECF No. 7.
On September 22, 2017, Petitioner commenced his second case, this case, by filing an
additional habeas corpus petition, ECF No. 1, an application to proceed without prepaying fees or
costs, ECF No. 2, and a motion for a stay, ECF No. 3. The petition raised the same fourteen claims
that Petitioner presented to the Court in case number 1:17-cv-10875, and he requested a stay of
the federal proceeding until he could file a proper post-conviction motion in state court.
On November 16, 2017, the Court denied the motion for a stay, summarily dismissed the
petition without prejudice, and closed this case. ECF No. 9. The Court noted that Petitioner’s
direct appeal from the trial court’s new judgment of sentence was still pending in the Michigan
Court of Appeals and that the statute of limitations would not begin to run until ninety days after
the conclusion of the appellate proceedings on Petitioner’s sentencing claim.
On September 28, 2018, Petitioner filed a second motion for a stay, ECF No. 13, another
petition for the writ of habeas corpus, ECF No. 14, and another application to proceed without
prepaying fees or costs, ECF No. 15. He alleges in his motion for a stay that he filed a motion for
relief from judgment in the state trial court on August 10, 2018. He asks that his habeas petition
be held in abeyance pending exhaustion of post-conviction remedies.
II.
As explained in Petitioner’s previous case and in the order dismissing the initial petition in
this case, a state prisoner must exhaust the remedies available to him in the state courts before a

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federal court may grant relief. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). Exhaustion requires a petitioner to “fairly present” his federal claims to the state courts
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. 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 at all levels of the state appellate system. Duncan, 513 U.S. at 36566; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483 (6th
Cir. 1990).
Petitioner states that he is still exhausting state remedies for his claims in post-conviction
proceedings under Michigan Court Rule 6.501, et seq. Under Rose v. Lundy, 455 U.S. 509, 522
(1982), district courts are directed to dismiss without prejudice petitions containing unexhausted
claims to allow petitioners to return to state court to exhaust remedies. Petitioner alleges that he
filed a motion for relief from judgment in the state trial court on August 10, 2018, which was
before his convictions and sentence became final. If the motion was properly filed, it tolled the
limitations period.

See 28 U.S.C. § 2244(b)(2) (“The time during which a properly filed

application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period of limitation under this
subsection.”)
It further appears that Petitioner’s post-conviction motion is still under review in the
State’s appellate courts. Petitioner has one appeal pending in the Michigan Court of Appeals in
case number 347720, and a different appeal pending in the Michigan Supreme Court in case
number 159075. See https://courts.michigan.gov/opinions_orders/case_search/pages/default.aspx.

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Thus, the habeas statute of limitations does not appear to pose a problem for Petitioner.
Accordingly, his motion for a stay will be denied, and the petition filed on September 28, 2018,
will be dismissed without prejudice.
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(c). Rule 11(a) 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 filed on
September 28, 2018, 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 Petitioner’s motion for a stay, ECF No. 13, is DENIED.
It is further ORDERED the petition for a writ of habeas corpus, ECF No. 14, is
DISMISSED without prejudice to Petitioner’s right to file an amended petition and a motion to
re-open this case after exhausting state remedies.
It is further ORDERED that the application to proceed without prepaying fees or costs,
ECF No. 15, is DENIED as unnecessary.

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It is further ORDERED that a certificate of appealability and permission to appeal in forma
pauperis are DENIED.
Dated: June 5, 2019

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 Jamshid Zahraie #593407, THUMB CORRECTIONAL
FACILITY, 3225 JOHN CONLEY DRIVE, LAPEER, MI 48446 by
first class U.S. mail on June 5, 2019.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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