Pettiford v. Howes

Filing 13

OPINION and ORDER DENYING re 12 Petition for Writ of Habeas Corpus & DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MONTEL PETTIFORD,
Petitioner,
Case Number: 2:11-cv-12025
Honorable Patrick J. Duggan

v.
CAROL HOWES,
Respondent.
/

ORDER CONSTRUING HABEAS CORPUS PETITION
AS MOTION TO REOPEN PROCEEDINGS, DENYING MOTION,
CLOSING CASE FOR ALL PURPOSES, AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
Petitioner Montel Pettiford, presently confined at the Oaks Correctional
Facility in Manistee, Michigan, filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 on May 9, 2011. Petitioner is challenging the
constitutionality of his first-degree premeditated murder conviction in 2008. On
April 5, 2012, at Petitioner’s request, the Court stayed the proceedings to allow
Petitioner to exhaust his state court remedies. (ECF No. 4.) The Court
administratively closed the case. On December 18, 2013, Petitioner filed a petition
for a writ of habeas corpus.1 The Court construes the petition for a writ of habeas
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The petition was filed as a new case and assigned to the Honorable Bernard
A. Friedman under case number 2:13-cv-15132. The 2013 case was reassigned to
(continued...)

corpus as a motion to lift the stay.
In the April 5, 2012 decision granting Petitioner’s motion to stay, the Court
conditioned the stay upon Petitioner presenting his unexhausted claims to the state
court within sixty days from the date of the order and– if Petitioner was
unsuccessful in the state court and wished to proceed here– to file a motion to lift
the stay and an amended petition within sixty days after the conclusion of statecourt proceedings. Petitioner timely filed a motion for relief from judgment in the
state court. The trial court denied the motion on June 22, 2012. People v. Pettiford,
No. 07-21145 (Genesee Cnty. Cir. Ct. July 27, 2012). The Michigan Court of
Appeals dismissed Petitioner’s delayed application for leave to appeal on May 1,
2013 for failure to pursue the case in conformity with the rules. People v.
Pettiford, No. 313819 (Mich. Ct. App. May 1, 2013). A search of the Michigan
courts’ public database of electronic court records shows no application for leave
to appeal filed by Petitioner in the Michigan Supreme Court. Petitioner, therefore,
has not exhausted his state court remedies.
Further, Petitioner waited approximately seven months to return to this
Court after the conclusion of state-court proceedings. Petitioner therefore failed to

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the undersigned district judge as a companion to this case. This Court then ordered
the petition re-filed in this earlier-filed matter and dismissed the 2013 case.
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comply with the terms of the stay and the Court declines to reopen these
proceeding.
When a district judge issues a final order adverse to a habeas petitioner, it
must decide whether to issue a certificate of appealability (“COA”). See Rule 11
of the Rules Governing § 2254 Cases; see also 28 U.S.C. § 2253. Section 2253
provides that a certificate of appealability may issue only if a petitioner makes a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
The Supreme Court has provided that when a district court denies a habeas
petition on the merits of the claims, a certificate may issue if the petitioner
demonstrates that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong. Slack v. McDaniel, 520 U.S. 473,
484, 120 S. Ct. 1595, 1604 (2000). However, when a district court denies habeas
relief on procedural grounds without reaching the petitioner’s constitutional
claims, a certificate may issue if the petitioner shows that jurists of reason would
find it debatable whether (1) the petition states a valid claim of a denial of a
constitutional right; and (2) the district court was correct in its procedural ruling.
Id. at 484-85, 120 S. Ct. at 1604.
This Court is dismissing this matter on procedural grounds. The Court does
not believe that jurists of reasons would find this procedural ruling incorrect.
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Accordingly,
IT IS ORDERED that the petition for a writ of habeas corpus is construed
as a motion to reopen proceedings and is DENIED;
IT IS FURTHER ORDERED, that this case is now closed for all purposes;
IT IS FURTHER ORDERED, that the Court declines to issue a certificate
of appealability.
Dated:March 13, 2014
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Montel Pettiford, #701591
Oaks Correctional Facility
1500 Caberfae Highway
Manistee, MI 49660
AAG Anica Letica

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