Montanez v. Rapelje
Filing
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OPINION AND ORDER denying 6 Motion ; denying 7 Motion to Compel; denying 2 Motion and Dismissing Petition Without Prejudice; Dening Certificate of Appealability. Signed by District Judge Victoria A. Roberts. (CPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ERIC MONTANEZ,
Petitioner,
Case Number: 2:13-CV-14763
HONORABLE VICTORIA A. ROBERTS
v.
L. RAPELJE,
Respondent.
/
OPINION AND ORDER DENYING PETITIONER’S
MOTION TO STAY PROCEEDINGS AND
DISMISSING PETITION WITHOUT PREJUDICE
I.
Introduction
Michigan state prisoner Eric Montanez filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, asserting he is being held in violation of his constitutional
rights. Petitioner was convicted in the Oakland County Circuit Court of assault with a
dangerous weapon, MICH. COMP. LAWS § 750.82; two counts of assault with intent to
commit murder, MICH. COMP. LAWS § 75083; and two counts of felony firearm, MICH.
COMP. LAWS § 750.227b.
Petitioner’s motion for a stay of the proceedings is now before the Court so that he
can raise three unexhausted claims in the state courts.
The Court denies Petitioner’s motion for a stay and instead dismisses the habeas
petition without prejudice. The Court also denies a certificate of appealability.
II.
Procedural History
Petitioner was convicted by a jury in Oakland County Circuit Court. On July 6,
2011, he was sentenced to 17 to 50 years’ in prison for each assault with intent to murder
conviction, two to four years’ in prison for the felonious assault conviction, and two years
imprisonment for the felony-firearm conviction.
Petitioner filed an appeal of right with the Michigan Court of Appeals raising these
claims: (i) offense variable 3 was incorrectly scored, (ii) the prosecutor improperly
asserted facts not in evidence and vouched for the credibility of prosecution witnesses,
and (iii) trial counsel was ineffective for failing to object to the prosecutor’s comments.
The Michigan Court of Appeals affirmed Petitioner’s convictions. People v. Montanez,
No. 305358, 2012 WL 6604710 (Mich. Ct. App. Dec. 18, 2012) (unpublished). Petitioner
then filed an application for leave to appeal with the Michigan Supreme Court raising the
same claims. The Michigan Supreme Court denied leave to appeal. People v. Montanez,
494 Mich. 852 (Mich. May 22, 2013).
Petitioner filed his federal habeas petition on November 15, 2013.
III.
Discussion
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”). To satisfy this requirement, the claims must be “fairly presented” to the
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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). The claims must also be presented to the state courts as federal constitutional
issues. See Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). While the exhaustion
requirement is not jurisdictional, a “strong presumption” exists that a petitioner must
exhaust 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 v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
The petition raises claims that Petitioner admits were not previously raised in state
court. Federal habeas law provides that a habeas petitioner is only entitled to relief if he
can show that the state court adjudication of his claims resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d). The
state courts must first be given a fair opportunity to rule upon Petitioner’s habeas claims
before he can present those claims to this Court. Otherwise, the Court cannot apply the
habeas standard of 28 U.S.C. § 2254. Furthermore, the state court proceedings may result
in the reversal of Petitioner’s convictions, thereby mooting the federal questions
presented. See Humphrey v. Scutt, No. 08-CV-14605, 2008 WL 4858091, *1 (E.D. Mich.
Nov. 5, 2008) (citing Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir.1983), and Woods
v. Gilmore, 26 F. Supp. 2d 1093, 1095 (C.D. Ill. 1998)); see also Szymanski v. Martin,
99-CV-76196-DT, 2000 WL 654916 (E.D. Mich. April 13, 2000). Non-prejudicial
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dismissal of the petition is warranted under such circumstances.
A federal district court has discretion to stay a habeas petition 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). However, 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 unexhausted claims are not “plainly meritless.” Id. at
277.
Petitioner has not shown the need for a stay. Although he may be concerned that
the one-year statute of limitations applicable to federal habeas actions, see 28 U.S.C. §
2244(d), poses a problem, it does not. The one-year period does not begin to run until 90
days after the conclusion of direct appeal. Gonzalez v. Thaler, __ U.S. __, 132 S. Ct. 641,
653 (2012) (stating that a conviction becomes final when the time for filing a certiorari
petition expires). The Michigan Supreme Court denied leave to appeal on May 22, 2013,
and the time for seeking a writ of certiorari with the United States Supreme Court expired
90 days later – on August 20, 2013. Petitioner filed his federal habeas petition on
November 15, 2013. Thus, approximately nine months of the one-year period remained
when he filed the petition. 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
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review” within the meaning of 28 U.S.C. § 2244(d)(2) so as to statutorily toll the
limitations period), such time may be 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). Even absent equitable tolling during the pendency of this habeas
proceeding, over five months of the one-year limitations period remains. Petitioner has
ample time to fully exhaust his state court remedies and return to federal court should he
wish to do so.
Thus, even assuming that Petitioner has not engaged in “intentionally dilatory
tactics” and has shown “good cause” for failing to fully exhaust issues in the state courts
before seeking federal habeas relief, he has not shown the need for a stay. Lastly, his
unexhausted claims concern matters of federal law which do not appear to be “plainly
meritless.” The state courts should be given a fair opportunity to rule on them. Under
these circumstances, a stay is unwarranted; a non-prejudicial dismissal of the habeas
petition is appropriate.
IV.
Conclusion
The Court DENIES Petitioner’s Motion to Hold In Abeyance Petitioner’s Petition
for Writ of Habeas Corpus [dkt. #2] and DISMISSES WITHOUT PREJUDICE the
petition for a writ of habeas corpus. If Petitioner wishes to proceed on the claims
contained in the petition and abandon his unexhausted claims, he may move to reopen
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these proceedings within thirty days from the date of the Order.
The Court DENIES AS MOOT Petitioner’s Motion to Have Court Rule Upon
Petitioner’s Motion to Stay [dkt. # 6] and Motion to Compel a Ruling Upon Petitioner’s
Motion to Hold In Abeyance His Petition for Writ of Habeas Corpus [dkt. # 7].
Before Petitioner may appeal the Court’s decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a federal court denies a
habeas claim on procedural grounds without addressing the merits, a certificate of
appealability should issue if it is shown that jurists of reason would find it debatable
whether the petitioner states a valid claim of the denial of a constitutional right, and that
jurists of reason would find it debatable whether the district court was correct in its
procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Reasonable
jurists could not debate the correctness of the Court’s procedural ruling. Accordingly, the
Court DENIES a certificate of appealability. This case is closed.
SO ORDERED.
S/Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: February 24, 2014
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The undersigned certifies that a copy of this
document was served on the attorneys of record
and Eric Montanez by electronic means or U.S.
Mail on February 24, 2014.
S/Carol A. Pinegar
Deputy Clerk
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