Dawson v. Rapelje

Filing 5

ORDER denying 4 petitioner's Motion to Stay and Abeyance. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TIMOTHY ALLEN DAWSON, #710532,
Petitioner,
CASE NO. 2:11-CV-15626
HONORABLE GEORGE CARAM STEEH

v.
LLOYD RAPELJE,
Respondent.
____________________________________/

ORDER DENYING PETITIONER’S MOTION FOR STAY AND ABEYANCE
I.
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner
Timothy Allen Dawson (“Petitioner”), currently confined at the Saginaw Correctional Facility,
in Freeland, Michigan, asserts that he is being held in violation of his constitutional rights.
Petitioner was convicted of first-degree premeditated murder, MICH. COMP. LAWS §
750.316(1)(a), following a jury trial in the Kent County Circuit Court and was sentenced to
life imprisonment without the possibility of parole in 2008. In his current petition, he raises
claims concerning the admission of other acts evidence, prosecutorial misconduct, the
admission of psychological testimony, restrictions on direct examination of a witness, and
his inability to file a supplemental brief or obtain an evidentiary hearing on state appeal.
Respondent has not yet filed an answer to the petition. The matter is before the Court on
Petitioner’s motion to stay his habeas proceedings so that he may return to the state courts
and exhaust additional issues concerning the effectiveness of trial and appellate counsel
and prosecutorial misconduct. For the reasons stated, the Court denies Petitioner’s

motion.
II.
Petitioner’s conviction arises from the strangulation death of his wife in Kent County,
Michigan on December 11, 2004. Following sentencing, Petitioner filed an appeal of right
with the Michigan Court of Appeals raising the claims contained in his current petition. The
Michigan Court of Appeals affirmed his conviction. People v. Dawson, No. 289931, 2010
WL 2629784 (Mich. Ct. App. July1, 2010) (unpublished). Petitioner then filed an application
for leave to appeal with the Michigan Supreme Court, which was denied. People v.
Dawson, 488 Mich. 99, 791 N.W.2d 465 (Dec. 20, 2010). Petitioner dated his federal
habeas petition on December 19, 2011 and it was filed by the Court on December 23,
2011. Petitioner dated the instant motion on April 9, 2012 and it was filed by the Court on
April 11, 2012.
III.
A 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).

To satisfy this

requirement, the claims must be “fairly presented” to the state courts, meaning that the
prisoner must have asserted both the factual and legal bases for the claims in the state
courts. See 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

2

presented to the state courts as federal constitutional issues. See Koontz v. Glossa, 731
F.2d 365, 368 (6th Cir. 1984). A Michigan prisoner must properly present each issue he
seeks to raise in a federal habeas proceeding to both the Michigan Court of Appeals and
the Michigan Supreme Court to satisfy the exhaustion requirement. See Welch v. Burke,
49 F. Supp. 2d 992, 998 (E.D. Mich. 1999); see also Hafley v. Sowders, 902 F.2d 480, 483
(6th Cir. 1990).

While the exhaustion requirement is not jurisdictional, a “strong

presumption” exists that a petitioner must exhaust all available state remedies before
seeking federal habeas review. See Granberry v. Greer, 481 U.S. 129, 131, 134-35
(1987). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
A federal district court has discretion to stay a mixed habeas petition, containing both
exhausted and unexhausted claims, to allow a petitioner to present unexhausted claims to
the state courts and then return to federal court on a 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 poses a concern, and
when the petitioner demonstrates "good cause" for the failure to exhaust state remedies
before proceeding in federal court, the petitioner has not engaged in intentionally dilatory
litigation tactics, and the unexhausted claims are not "plainly meritless." Id. at 277.
Petitioner has not shown the need for a stay. His current habeas claims appear to
be exhausted and he has not shown that the one-year statute of limitations applicable to
federal habeas actions, see 28 U.S.C. § 2244(d), poses a concern. The one-year
limitations period does not begin to run until 90 days after the conclusion of direct appeal,
see Jimenez v. Quarterman, 555 U.S. 113, 120 (2009) (stating that a conviction becomes
final when “the time for filing a certiorari petition expires”); Lawrence v. Florida, 549 U.S.
3

327, 333 (2007). The Michigan Supreme Court denied Petitioner leave to appeal on
December 20, 2010 and the time for seeking a writ of certiorari with the United States
Supreme Court expired on March 20, 2011. Petitioner dated his federal habeas petition
on December 19, 2011. Thus, only nine months of the one-year period had expired when
Petitioner instituted this action. While the time in which this case has been pending in
federal court is not statutorily tolled, see Duncan v. Walker, 533 U.S. 167, 181-82 (2001)
(a federal habeas petition is not an “application for State post-conviction or other collateral
review” within the meaning of 28 U.S.C. § 2244(d)(2) so as to statutorily toll the limitations
period), such time is equitably tolled. See, e.g., Johnson v. Warren, 344 F. Supp. 2d 1081,
1088-89 (E.D. Mich. 2004). The limitations period will also be tolled during the time in
which any properly filed post-conviction or collateral actions are pending in the state courts.
See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-221 (2002). Given that
three months of the one-year period remains, Petitioner has sufficient time to exhaust
additional issues in the state courts and return to federal court should he wish to do so.
Additionally, while there is no evidence of intentional delay, Petitioner has not shown
good cause for failing to previously raise his additional issues in the state courts before
seeking federal habeas relief. The fact that appellate counsel did not raise the issues on
direct appeal, while perhaps establishing cause for that procedural default, does not excuse
Petitioner’s failure to exhaust all of his issues on state collateral review before proceeding
in federal court. The lack of a legal education and ignorance of the law do not constitute
good cause for the failure to exhaust state remedies. See Allen v. Yukins, 366 F.3d 396,
403 (6th Cir. 2004); Kint v. Burt, No. 2:05-CV-74822-DT, 2007 WL 763174, *2 n.1 (E.D.
Mich. March 9, 2007). Petitioner’s unexhausted claims concern matters of federal law
4

which do not appear to be plainly meritless. Those claims should be presented to, and
addressed by, the state courts in the first instance. Otherwise, the Court is unable to apply
the standard found at 28 U.S.C. § 2254. Given such circumstances, a stay is unnecessary
and unwarranted.
IV.
Accordingly, the Court DENIES Petitioner’s motion for stay and abeyance of his
habeas proceedings. Should Petitioner wish to have the Court dismiss the present petition,
which contains exhausted claims, so that he may pursue additional issues in the state
courts, he may move for a non-prejudicial dismissal of his habeas petition within 30 days
of the filing date of this order. If he does not do so, the Court shall proceed on the claims
contained in the pending petition.
IT IS SO ORDERED.
Dated: April 23, 2012
S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 23, 2012, by electronic and/or ordinary mail and also to
Timothy Dawson at Saginaw Correctional Facility, 9625 Pierce
Road, Freeland, MI 48623.
S/Josephine Chaffee
Deputy Clerk

5