McGinnis v. Curley
Filing
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MEMORANDUM OPINION and ORDER dismissing 1 Petition for Writ of Habeas Corpus without prejudice and denying certificate of appealibility. Signed by District Judge Bernard A. Friedman. (SJa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LESLIE MCGINNIS,
Civil Action No. 09-CV-11292
Petitioner,
v.
HON. BERNARD A. FRIEDMAN
MICHAEL CURLEY,
Respondent.
___________________/
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Leslie McGinnis has filed a pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2254. Petitioner is currently released on parole. At the time he
filed his petition, he was incarcerated at the Ojibway Correctional Facility in Marenisco,
Michigan. Petitioner challenges his plea-based conviction for unarmed robbery for which
he was sentenced to two to 15 years in prison. He presents 15 claims for relief. For the
reasons stated below, the court concludes that the petition contains unexhausted claims and
that it must therefore be dismissed without prejudice. The court also declines to issue a
certificate of appealability.
Following petitioner’s conviction and sentencing in Wayne County Circuit
Court, he filed a delayed application for leave to appeal in the Michigan Court of Appeals,
raining the following claims:
I.
The trial court abused its discretion in failing to grant
defendant’s motion to quash when there was a missing
element as to the robbery charge.
II.
Defendant was denied the protection of the Fourth
Amendment when the police officer, acting on a hunch
that the defendant was involved in a crime, pursued his
vehicle without probable cause or reasonable suspicion
and initiated a stop without defendant having committed
any traffic violation.
III.
Defendant’s plea should be withdrawn as the factual
basis for the guilty plea was lacking for unarmed robbery
when defendant did not assault the victim.
The Michigan Court of Appeals denied leave to appeal. See People v. McGinnis, No. 289018
(Mich. Ct. App. Aug. 8, 2007).
Petitioner filed an application for leave to appeal in the Michigan Supreme
Court. He raised the same claims as were raised in the Michigan Court of Appeals and also
six additional claims. The Michigan Supreme Court denied leave to appeal. See People v.
McGinnis, 480 Mich. 1009 (2008).
Petitioner then filed the pending petition for a writ of habeas corpus. He raises
the following 15 claims:1
I.
II.
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Was Petitioner, contrary to, or as an unreasonable
application of U.S. Supreme Court precedent denied his
constitutional right to counsel at critical stages of the
proceedings?
Was Petitioner’s plea contrary to, or an unreasonable
application of Supreme Court precedent and therefore,
“illusory and invalid”? Further, did Judge Thomas act
contrary to, or unreasonably apply Supreme Court
Petitioner’s claims are lengthy. As necessary, they are shortened here for clarity.
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precedent by accepting Petitioner’s “illusory” plea?
III.
Did attorney Harris deny Petitioner effective assistance
by advising him to accept such an “illusory” plea because
he did not have a firm command of the law governing the
plea?
IV.
Did Judge Thomas, due to her arbitrary insistence for
expeditiousness even in the face of Petitioner’s repeated
and justifiable requests for a delay for the appointment of
new counsel act contrary to, or unreasonably apply U.S.
Supreme Court precedent by bartering Petitioner’s right
to a speedy trial against his right to counsel, thereby
denying him counsel and making his waiver of counsel
and his associated trial rights involuntary? Further, was
attorney Harris also ineffective as he failed to object to
and litigate such a claim . . . ?
V.
Did attorney Harris fail to investigate and deny Petitioner
effective assistance of counsel and “coerce” his plea by
advising Petitioner that invoking his constitutional right
to a jury trial would result in a harsher sentence?
VI.
Was there insufficient evidence for probable cause to
believe (1) Petitioner committed the charged robbery; (2)
he assaulted complainant; and (3) that he was armed at
the time of the robbery; because the state/police. . . failed
to honor their legal/constitutional duty to present all the
material evidence, or the whole of the res gestae to the
court (& defense)? And, did the state also present the
false/perjured testimony. . .? . . . And did judges Gerou,
McDonald and Deborah Thomas also act contrary to, or
unreasonably apply Supreme Court precedent by
charging, issuing a warrant, binding over and trying
Petitioner respectively, based on such insufficient
evidence? . . . And, did attorney Harris deny Petitioner
effective assistance due to his failure to investigate, his
inadequate knowledge and research of the law, making
his trial strategies and advice to Petitioner unsound?
VII.
Did the prosecutor, Judges Gerou, McDonald and
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Deborah Thomas act contrary to, or unreasonably apply
Supreme Court precedent by charging, issuing a warrant,
binding over and trying Petitioner for armed robbery
when Officer Traylor’s own testimony was the
uncontroverted physical evidence that not only proved
that he lacked probable cause to search and seize
Petitioner, but also established an irrefutable alibi for
Petitioner for the time of the robbery? Further, did
attorney Harris deny Petitioner effective assistance of
counsel?
VIII. Did the trial court fail to fulfill the mandatory provisions
of MCR 6.302(X)(3), requiring explanation for the
condition on which a plea may be withdrawn, and result
in a decision contrary to, or as an unreasonable
application of clearly established federal law as
determined by the U.S. Supreme Court? Further, was
Petitioner denied the effective assistance of appellate
counsel by attorney Ambrose who failed to raise such a
claim on appeal?
IX.
Did the trial court (Judge Thomas) violate MCR
6.302(A) & (E) depriving Petitioner’s plea of the
voluntary and knowing elements and the requisite
affirmative record thereof required by Boykin and Brady
by failing to ask the prosecutor and Petitioner’s own
attorney whether either was aware of any promises,
threats or inducements other than those already disclosed
on the record, before accepting Petitioner’s plea (or any
time after the plea as well)?
X.
Was Petitioner denied the effective assistance of trial
counsel(s), due process of law and other substantial
constitutional rights as listed herein, and did the state
appellate courts act contrary to, or unreasonably apply
Supreme Court precedent when they denied Petitioner’s
state court appeals.
XI.
Was Petitioner subjected to ineffective assistance of
counsel by his trial and appellate attorneys as they failed
to properly/adequately cross examine key state witnesses
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at trial in regards to the fact that Petitioner was never
identified by the complainant as the robber, or in regards
to an alibi defense that was established by the arresting
officer’s own testimony, and therefore there was no
probable cause to initially arrest Petitioner, and Petitioner
was therefore prejudiced by his attorney’s failures to
cross-examine key state witnesses on such issues?
Further, was Petitioner also therefore denied his right to
effective representation . . . and his right to confront his
accusers . . .? Were Petitioner’s 6th Amendment
confrontation clause rights also violated when the police
officers Traylor and Torolski testified as to the identity
of the Petitioner while the complainant has never
identified Petitioner as the robber, and his attorneys
never challenged such statements by key state witnesses?
Further does such evidence also conclusively prove
Petitioner’s actual innocence?
XII.
Did the state . . . deprive Petitioner of his constitutional
right to the benefit of the presumption of innocence by
failing to present all the material evidence, or the whole
of the res gestae, and therefore did the state throw upon
Petitioner the burden of proving his innocence in
violation of his right to be presumed innocent until
proven guilty by the state/prosecution, and which also
denied him his rights to due process, a fair trial, and was
Petitioner also therefore denied effective assistance of
counsel by attorney Harris who failed . . . to present and
litigate such a claim, making his trial strategies and his
advice to Petitioner to accept a plea also unsound?
XIII. Was Petitioner constructively denied representation of
counsel . . . when counsel was assigned 8 days before
Petitioner attended a hearing at which he was forced to
be arraigned on the information while he had not had any
previous opportunity to meet with counsel at all or to
have his case investigated by counsel or her
substitute/associate, and counsel did not meet with
Petitioner until day of hearing, when they conversed for
only about 5-10 minutes in the bull-pen and counsel was
forced to review options in crowded and noisy room with
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no privacy.?
XIV. Was Attorney Harris ineffective due to his failure to
question officer Traylor about Petitioner’s potential alibi
defense; . . . and because he did not make any attempt to
investigate officer Traylor’s testimony and a potential
alibi defense, even after being made aware of the same
by Petitioner, and did also not make a reasoned
professional judgment that . . . investigation was not
necessary, violated the USCA Const. Amend. 6?
XV.
Was it gross error for trial and appellate counsel to fail to
assert an obvious prosecutorial Brady violation claim?
And, did counsel’s failure to legitimately meet with,
listen to, consult with and investigate Petitioner’s case
cause trial and appellate counsel to be unaware of such a
violation?
And, were the resulting prejudicial
repercussions to Petitioner objectively unreasonable, and
therefore did they (Attorneys Harris & Ambrose) render
ineffective assistance constituting cause to excuse any
procedural error/default by Petitioner?
Respondent argues that the petition should be dismissed because it contains
unexhausted claims. A federal court may not grant habeas corpus relief to a state prisoner
unless the prisoner first exhausts his remedies in state court. See 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 (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 U.S. at 845 (internal quotation omitted). Each issue must
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be presented to both the Michigan Court of Appeals and the Michigan Supreme Court to
satisfy the exhaustion requirement. See 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 petitioner bears the
burden of establishing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
In the present case, petitioner has exhausted only the three claims he presented
to the Michigan Court of Appeals and the Michigan Supreme Court. His remaining claims
were either presented for the first time in his application for leave to appeal to the Michigan
Supreme Court or were not presented to any state 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 to 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).
Generally, a federal district court should dismiss a “mixed” petition for a writ
of habeas corpus, that is, one containing both exhausted and unexhausted claims. See Rose
v. Lundy, 455 U.S. 509, 510 (1982); Rust, 17 F.3d at 160. However, a federal district court
has discretion to stay a mixed habeas petition to allow a petitioner to present his unexhausted
claims to the state courts in the first instance and then return to federal court on his perfected
petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is available
only in “limited circumstances” such as when the one-year statute of limitations applicable
to federal habeas actions poses a concern, and when the petitioner demonstrates “good cause”
for the failure to exhaust state court remedies before proceeding in federal court and the
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unexhausted claims are not “plainly meritless.” Id. at 277.
Petitioner has available remedies in the Michigan courts which must be
exhausted before proceeding in federal court. He may file a motion for relief from judgment
pursuant to Michigan Court Rule 6.500 with the state trial court and pursue his unexhausted
issues in the state appellate courts as necessary. While the time a habeas case is pending in
federal court is not statutorily tolled, see Duncan v. Walker, 533 U.S. 167, 181-82 (2001),
such time is equitably tolled by the Court so long as petitioner diligently pursues his rights
in state court. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Additionally, the
one-year period will be tolled during the time in which any properly filed state
post-conviction or collateral actions are pending. See 28 U.S.C. § 2244(d)(2); Carey v.
Saffold, 536 U.S. 214, 219-221 (2002). Therefore, dismissal of this petition will not
jeopardize the timeliness of a future petition.
Further, petitioner has not shown good cause for failing to exhaust his claims
in the state courts before proceeding in federal court on habeas review. At least one of his
unexhausted claims appears to concern matters of federal law which may warrant further
review. His unexhausted claims should therefore be addressed to, and considered by, the
state courts in the first instance.
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 requires that the court “must issue or
deny a certificate of appealability when it enters a final order adverse to the applicant.” A
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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 the present case, reasonable jurists would not debate the court’s conclusion that
the petition should be dismissed without prejudice for the reasons indicated above.
Therefore, the court declines to issue a certificate of appealability.
For the reasons indicated above,
IT IS ORDERED that the petition in this matter is dismissed without prejudice.
IT IS FURTHER ORDERED that no certificate of appealability shall issue.
Dated: April 11, 2011
Detroit, Michigan
S/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
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