Johnson-Rosser v. Balcarcel

Filing 6

OPINION and ORDER Dismissing the 1 Petition for a Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Proceed in Forma Pauperis on Appeal. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DESHARIO JOHNSON-ROSSER, #834628,
Petitioner,

Case No. 18-10592
Honorable Thomas L. Ludington

v.
ERICK BALCARCEL,
Respondent.
_______________________________________/

OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.
Michigan prisoner Deshario Johnson-Rosser (“Petitioner”), currently confined at the St.
Louis Correctional Facility in St. Louis, Michigan, has filed a pro se petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging his Kent County Circuit Court conviction for
first-degree criminal sexual conduct for which he was sentenced as a fourth habitual offender to
30 to 60 years imprisonment in 2015. In his pleadings, Petitioner asserts that he is entitled to
habeas relief because trial counsel was ineffective for failing to sufficiently cross-examine the
six-year-old victim. For the reasons stated herein, the Court dismisses without prejudice the
petition for a writ of habeas corpus. The Court also denies a certificate of appealability and
denies leave to proceed in forma pauperis on appeal.
II.
Promptly after the filing of a habeas petition, the Court must undertake a preliminary
review of the petition to determine whether “it plainly appears from the face of the petition and
any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4,

Rules Governing § 2254 Cases; see also 28 U.S.C. § 2243. If, after preliminary consideration,
the Court determines that the petitioner is not entitled to relief, the Court must summarily dismiss
the petition. Id., Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has duty to
“screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes petitions
which raise legally frivolous claims, as well as those containing factual allegations that are
palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999).
It is well-settled that a state prisoner filing a petition for a writ of habeas corpus under 28
U.S.C. §2254 must first exhaust all state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838,
845 (1999) (“state prisoners must give the state courts one full fair opportunity to resolve any
constitutional issues by invoking one complete round of the State’s established appellate review
process”); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The claims must be “fairly presented”
to the state courts, meaning that the petitioner must have asserted both the factual and legal bases
for the claims in the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see
also Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). The claims
must also be raised in the state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d
365, 368 (6th Cir. 1984). A Michigan prisoner must raise each issue he seeks to present in a
federal habeas proceeding to both the Michigan Court of Appeals and the Michigan Supreme
Court to satisfy the exhaustion requirement. Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.
1990); Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999). The burden is on the
petitioner to prove exhaustion. Rust, 17 F.3d at 160.
Petitioner has not met his burden. The record indicates that he raised his habeas claim on
direct appeal before the Michigan Court of Appeals and was denied relief. People v. JohnsonRosser, No. 328760 (Mich. Ct. App. Nov. 17, 2016). There is no indication, however, that he

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filed an application for leave to appeal with the Michigan Supreme Court. He has thus failed to
fully exhaust state court remedies before seeking federal habeas relief.
Petitioner has an available state court remedy to challenge his conviction which must be
exhausted before he seeks federal habeas review. He may file a motion for relief from judgment
pursuant to Michigan Court Rule 6.500 with the state trial court and then pursue his claims
through both of the state appellate courts as necessary. Federal 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. 28 U.S.C.
§ 2254(d). The state courts must first be given a fair opportunity to rule upon Petitioner’s claims
before he can present them in federal court. Otherwise, the Court cannot apply the standard
found at 28 U.S.C. § 2254.
III.
For the reasons stated, the Court concludes that Petitioner has not properly exhausted his
habeas claim in the state courts.
Before Petitioner may appeal this decision, a certificate of appealability must issue. 28
U.S.C. § 2253(c)(1)(a); FED. R. APP. P. 22(b). A certificate of appealability may issue “only if
the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). When a court denies relief on procedural grounds without addressing the merits, a
certificate of appealability should issue if it is shown that jurists of reason would find it
debatable whether the petitioner states a valid claim of the denial of a constitutional right, and
that jurists of reason would find it debatable whether the court was correct in its procedural
ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Reasonable jurists could not debate

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the correctness of the Court’s procedural ruling. Accordingly, a certificate of appealability will
be denied. Because an appeal could not be taken in good faith, Petitioner will also be denied
leave to proceed in forma pauperis. See Fed. R. App. P. 24(a).
Accordingly, the petition for a writ of habeas corpus, ECF No. 1, is DISMISSED
WITHOUT PREJUDICE. The Court makes no determination as to the merit of Petitioner’s
claim.
It is further ORDERED that a certificate of appealability and permission to appeal in
forma pauperis are DENIED.
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: May 31, 2018

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 May 31, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager

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