Armstrong v. Rapelje
Filing
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OPINION and ORDER SUMMARILY DISMISSING WITHOUT PREJUDICE re 1 Petition for Writ of Habeas Corpus & DECLINING TO ISSUE A CERTIFICATE OF APPEALABILTY Signed by District Judge Patrick J. Duggan. (MOre)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAMOND ARMSTRONG,
Petitioner,
Civil Action No. 2:12-cv-14619
Honorable Patrick J. Duggan
v.
LLOYD RAPELJE,
Respondent.
___________________________/
OPINION AND ORDER SUMMARILY DISMISSING WITHOUT PREJUDICE
PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
This is a habeas case filed by a state prisoner under 28 U.S.C. § 2254. Petitioner
Damond Armstrong is a Michigan Department of Corrections’ prisoner, currently
incarcerated at the Saginaw Correctional Facility in Freeland, Michigan. Petitioner is
serving concurrent prison terms of twenty-five to forty-five years for a second-degree
murder conviction and seventeen years, six months to thirty years for an assault with
intent to murder conviction, along with a consecutive two-year prison term for a
felony-firearm conviction. Petitioner was convicted of these charges on October 21,
2009, following a jury trial in the Circuit Court for Wayne County, Michigan. He was
sentenced on November 5, 2009. Because Petitioner’s claims are unexhausted, the Court
summarily dismisses his petition without prejudice. The Court also declines to issue a
certificate of appealability.
Background
After he was convicted and sentenced, Petitioner filed a direct appeal raising
numerous claims. The Michigan Court of Appeals affirmed his convictions and sentence.
People v. Armstrong, No. 295293, 2011 WL 683108 (Mich. Ct. App. Feb. 24, 2011).
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court,
which the Court denied on July 25, 2011. People v. Armstrong, 489 Mich. 992, 800
N.W.2d 594 (2011) (Table). After the Michigan Supreme Court issued its decision,
Petitioner filed a motion for relief from judgment with the state trial court. The trial court
denied the motion on February 15, 2012. People v. Armstrong, No. 09-014636-01-FC
(Wayne Cnty. Cir. Ct. Feb. 15, 2012). Petitioner filed a delayed application for leave to
appeal that decision with the Court of Appeals, which was denied on August 24, 2012.
People v. Armstrong, No. 308991 (Mich. Ct. App. Aug. 24, 2012). His application for
leave to appeal that decision is currently pending before the Michigan Supreme Court.
(See ECF No. 1 at 22.)
Petitioner filed his pro se application for the writ of habeas corpus in this Court on
October 18, 2012.
Discussion
Rule 4 of the Rules Governing Section 2254 Cases requires a district court to
promptly examine a petition to determine “[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief.” If the court determines that
the petitioner is not entitled to relief, the court must summarily dismiss the petition. Rule
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4 of the Rules Governing § 2254 Cases; see also McFarland v. Scott, 512 U.S. 849, 856,
114 S. Ct. 2568, 2572 (1994).
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, 119 S. Ct. 1728, 1731 (1999). “Ordinarily, the state courts must have had the
opportunity to pass on [a] defendant’s claims of constitutional violations.” Prather v.
Rees, 822 F.2d 1418, 1419 (6th Cir. 1987). “This rule of comity reduces friction between
the state and federal court systems by avoiding the unseem[liness] 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, 119 S.Ct. at 1732 (internal quotation omitted). State prisoners in Michigan
must raise each claim in both state appellate courts before seeking federal habeas corpus
relief. Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). The petitioner bears the
burden of establishing exhaustion. Caver v. Straub, 349 F.3d 340, 345 (6th Cir. 2003)
(citing Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994)).
In this case, Petitioner states that he is awaiting a decision from the Michigan
Supreme Court with respect to the trial court’s denial of his post-conviction motion.
Records maintained by the Michigan Court of Appeals on its official website indicate that
Petitioner is correct. Therefore, for purposes of this petition, his claims are unexhausted
and the petition must be dismissed without prejudice. Petitioner must await the Supreme
Court’s decision before seeking federal habeas relief. See Witzke v. Bell, No. 07-CV3
15315, 2007 WL 4557674 (E.D. Mich. Dec. 20, 2007). The state courts must first be
given a fair opportunity to rule upon all of Petitioner’s habeas claims before he can
present those claims to this Court. Additionally, there has not been an absence of an
available state corrective process or circumstances rendering such process ineffective to
protect Petitioner’s rights.
The Court finds that the one-year statute of limitations does not appear to pose a
problem for Petitioner. 28 U.S.C. § 2244(d). The one-year limitations period does not
begin until ninety days after the conclusion of direct appeal. Sup. Ct. R. 13(1); see also
Jimenez v. Quarterman, 555 U.S. 113, 119, 129 S.Ct. 681, 685 (2009); Bronaugh v. Ohio,
235 F.3d 280, 285 (6th Cir. 2000). Petitioner filed his motion for relief from judgment
with the state trial court within that ninety-day period. That motion tolled the one-year
period. 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-221, 122 S. Ct.
2134, 2138-39 (2002). Thus, the one-year period will continue to be tolled until the
collateral review of Petitioner’s claims has been completed. Given such circumstances, a
stay is unwarranted and a dismissal, without prejudice, of the petition is appropriate.
Certificate of Appealability
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 the district court to “issue
or deny a certificate of appealability when it enters a final order adverse to the applicant.”
A “COA” may issue “only if the applicant has made a substantial showing of the denial of
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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, 120 S.Ct.
1595, 1603-04 (2000) (citation omitted). In this case, the Court concludes that
reasonable jurists would not debate its conclusion that the petition should be summarily
dismissed without prejudice. Therefore, the Court declines to issue Petitioner a COA.
Accordingly,
IT IS ORDERED, that Petitioner’s petition for a writ of habeas corpus is
DISMISSED WITHOUT PREJUDICE;
IT IS FURTHER ORDERED, that the Court declines to issue Petitioner a
certificate of appealability.
Dated: November 27, 2012
s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copy to:
Damond S. Armstrong, #747715
Saginaw Correctional Facility
9625 Pierce Road
Freeland, MI 48623
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