Ziegler v McKee
Filing
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OPINION and ORDER DENYING writ of habeas corpus and a certificate of appealability Signed by District Judge Nancy G. Edmunds. (CHem)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH RAYMOND ZIEGLER,
Case Number: 2:10-CV-12908
Petitioner,
HONORABLE NANCY G. EDMUNDS
v.
KENNETH MCKEE,
Respondent.
/
OPINION AND ORDER DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS WITHOUT PREJUDICE AND
DENYING CERTIFICATE OF APPEALABILITY
This matter is before the Court on Joseph Raymond Ziegler’s pro se petition for a
writ of habeas corpus. Ziegler, who is presently released on parole, challenges his
conviction for assaulting, battering, obstructing or opposing a police officer performing
his duties (resisting arrest). The petition raises a claim that has not been exhausted in
state court and, therefore, will be dismissed without prejudice.
I.
Following a jury trial in the Oakland County circuit Court, Ziegler was convicted
of resisting arrest. Mich. Comp. Laws § 750.81d. On April 11, 2007, he was sentenced
as a fourth habitual offender to two to fifteen years in prison.
Ziegler filed an appeal of right in the Michigan Court of Appeals. He raised these
claims:
I.
Mr. Ziegler claims he received ineffective assistance of counsel by
counsel’s failure to assist him in the preparation and execution of the trial.
II.
Mr. Ziegler asserts that his waiver of the right to appointment of counsel
was not done knowingly, intelligently and voluntarily, and that his
representation in pro per violated his right to a fair trial and to equal
protection under the U.S. Constitution and the Constitution of the State of
Michigan.
III.
Mr. Ziegler was denied his state and federal constitutional rights of due
process, equal protections, and of a fair trial by the court’s rulings which
did not allow him to present his defenses.
IV.
Mr. Ziegler asserts he was the victim of vindictive prosecution in this case.
V.
Mr. Ziegler asserts there was prosecutorial misconduct in this case which
violated his rights of equal protection and of having a fair trial as
guaranteed by the U.S. and State Constitutions.
VI.
The court’s instructions to the jury were improper, violating defendant’s
federal and state constitutional rights of due process and fair trial.
VII.
The cumulative effect of the errors and violations of due process prejudiced
defendant’s right to a fair trial.
VIII. Defendant asserts that his conviction was against the great weight of the
evidence and must be reversed.
IX.
Defendant’s sentence was invalid where it was not individualized.
The Michigan Court of Appeals affirmed the conviction. People v. Ziegler, No.
278270 (Mich. Ct. App. Jan. 22, 2009).
Ziegler filed an application for leave to appeal in the Michigan Supreme Court.
He raised the same claims raised in the Michigan Court of Appeals. The Michigan
Supreme Court denied leave to appeal, People v. Ziegler, 484 Mich. 868 (Mich. Aug. 6,
2009), and denied Ziegler’s motion for reconsideration. People v. Ziegler, 485 Mich. 931
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(Mich. Oct. 26, 2009).
Ziegler then filed the pending habeas petition. He raises these claims:
I.
State courts’ denials conflict with federal law as determined by U.S.
Supreme Court, and Petitioner was denied to effective assistance of trial
counsel.
II.
State courts’ denials conflict with federal law as determined by the U.S.
Supreme Court, and self representation was not done knowingly,
intelligently, and voluntarily.
III.
State courts’ denials conflict with federal law as determined by the U.S.
Supreme Court, and Petitioner was denied his rights to due process, equal
protection, and a fair trial by trial court denying him his right to present
defenses.
IV.
State courts’ denials conflict with federal law as determined by the U.S.
Supreme Court, and Petitioner was denied rights to due process and fair
trial by being victim of vindictive prosecution.
V.
State courts’ denials conflict with federal law as determined by the U.S.
Supreme Court, and Petitioner was denied right to due process, equal
protection, and a fair trial due to prosecutorial misconduct.
VI.
State courts’ denials conflict with federal law as determined by the U.S.
Supreme Court, and Petitioner was denied rights to due process and a fair
trial due to cumulative effects of all errors.
VII.
State courts’ denials conflict with federal law as determined by the U.S.
Supreme Court, and conviction was against the great weight of evidence in
violation of due process and a fair trial.
VIII. State courts’ denials conflict with federal law as determined by the U.S.
Supreme Court, and sentence is invalid since it was not individualized in
violation of due process, equal protection and fair trial.
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II.
Respondent argues that the petition should be dismissed because the petition raises
an unexhausted claim. 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 (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 be presented to both the Michigan Court of
Appeals and the Michigan Supreme Court to satisfy the exhaustion requirement. Wagner
v. Smith, 581 F.3d 410, 414 (6th Cir. 2009). The petitioner bears the burden of
establishing exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
Ziegler’s claim that his sentence was increased in retaliation for exercising his
right to a jury trial was not raised in the Michigan Court of Appeals or the Michigan
Supreme Court. Therefore, it is not properly exhausted.
The Michigan Court Rules provide a process through which Ziegler may raise his
unexhausted claim. He may file a motion for relief from judgment pursuant to Mich. Ct.
R. 6.500 et seq. Ziegler may appeal the trial court’s disposition of his motion for relief
from judgment to the Michigan Court of Appeals and Michigan Supreme Court. To
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obtain relief, he will have to show cause for failing to raise his unexhausted claim on
direct review and resulting prejudice or a significant possibility of innocence. See Mich.
Ct. R. 6.508(D)(3). However, he would have to make a similar showing here if the Court
concluded that there was no state remedy to exhaust. Gray v. Netherland, 518 U.S. 152,
161-62 (1996); Hannah v. Conley, 49 F.3d 1193, 1195-96, n.3 (6th Cir. 1995); Rust, 17
F.3d at 160. Ziegler’s unexhausted claim should be addressed to, and considered by, the
state courts in the first instance.
In dismissing a petition without prejudice, a district court must not “‘jeopardize the
timeliness of a collateral attack.’” Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002),
quoting Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001). To avoid jeopardizing the
timeliness of a future petition, the Court shall dismiss the petition without prejudice and
the one-year limitations period shall be tolled from the date Ziegler filed his petition, July
19, 2010, until he returns to federal court. Hargrove v. Brigano, 300 F.3d 717, 719-721
(6th Cir. 2002) (approving safeguards adopted here). The tolling of the limitations period
is conditioned upon Ziegler “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. Rule 11 of
the Rules Governing Section 2254 Proceedings now requires that the Court “must issue or
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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). 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 dismissed without prejudice. Therefore, the
Court denies a certificate of appealability.
IV.
For the reasons stated, the Court concludes that Petitioner has not exhausted his
state court remedies. Accordingly, the petition for a writ of habeas corpus is
DISMISSED WITHOUT PREJUDICE and a certificate of appealability is DENIED.
SO ORDERED.
s/Nancy G. Edmunds
Nancy G. Edmunds
United States District Judge
Dated: November 1, 2011
I hereby certify that a copy of the foregoing document was served upon counsel of record
on November 1, 2011, by electronic and/or ordinary mail.
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s/Carol A. Hemeyer
Case Manager
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