Hughes v. Palmer
Filing
11
OPINION AND ORDER RE-OPENING CASE, DISMISSING THE PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL. Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DELBERT HUGHES,
Petitioner,
CASE NO. 2:13-CV-14790
HONORABLE GERSHWIN A. DRAIN
v.
CARMEN PALMER,
Respondent.
_________________________________/
OPINION AND ORDER RE-OPENING CASE, DISMISSING THE
PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan
prisoner Delbert Hughes (“Petitioner”) was convicted of first-degree felony
murder, MICH. COMP. LAWS § 750.316(1)(b), felon in possession of a firearm,
MICH. COMP. LAWS § 750.224f, and possession of a firearm during the
commission of a felony, MICH. COMP. LAWS § 750.227b, following a jury trial
in the Wayne County Circuit Court in 2010. He was sentenced as a second
habitual offender, MICH. COMP. LAWS § 769.10, to life imprisonment without the
possibility of parole on the murder conviction, a concurrent term of 22 months
to five years imprisonment on the felon in possession conviction, and a
consecutive term of two years imprisonment on the felony firearm conviction.
Following his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals raising claims concerning the
sufficiency of the evidence, the admission of police opinion testimony, the
effectiveness of trial counsel, and the alleged use of perjured testimony at the
preliminary examination and trial. The court denied relief on those claims and
affirmed Petitioner’s convictions. People v. Hughes, No. 301332, 2012 WL
2402050 (Mich. Ct. App. Jun. 26, 2012) (unpublished). Petitioner filed an
application for leave to appeal with the Michigan Supreme Court, which was
denied. People v. Hughes, 493 Mich. 921, 823 N.W.2d 564 (Dec. 26, 2012).
Petitioner dated his federal habeas petition on November 18, 2013. In
that petition, he raised the same claims presented to the state courts on direct
appeal. Petitioner subsequently moved to stay the proceedings so that he
could return to the state courts and exhaust additional issues concerning the
notice of the charges and the effectiveness of appellate counsel. On February
13, 2014, the Court granted Petitioner’s motion to stay the proceedings and
administratively closed the case. The stay was conditioned on Petitioner
presenting his unexhausted claims to the state courts within 60 days of the
Court’s order and, if he was unsuccessful in the state courts, moving to lift the
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stay to re-open the case and proceed on an amended petition within 60 days
after the conclusion of the state collateral review proceedings.
On April 21, 2014, Petitioner filed a motion for relief from judgment with
the state trial court, which was denied on October 6, 2014. See Register of
Actions, People v. Hughes, Wayne Co. Cir. Ct. Case No. 09-022390-01-FC.
Petitioner then filed a delayed application for leave to appeal with the
Michigan Court of Appeals, which was dismissed as untimely under Michigan
Court Rule 7.205(G)(3) (providing a six-month appeal period). People v.
Hughes, 326991 (Mich. Ct. App. May 12, 2015). It does not appear that
Petitioner sought leave to appeal with the Michigan Supreme Court. Rather,
on July 21, 2015, he filed a second motion for relief from judgment with the
state trial court, which was denied on July 18, 2016. See Register of Actions,
People v. Hughes, Wayne Co. Cir. Ct. Case No. 09-022390-01-FC. Petitioner
has not appealed that decision and would be precluded from doing so under
Michigan Court Rule 6.502(G) (stating that a defendant “may not appeal the
denial or rejection of a successive motion” for relief from judgment).
This matter is now before the Court on Petitioner’s letter request seeking
to re-open this case, which was filed on October 31, 2016. Petitioner did not
file an amended habeas petition with his request. The Court now RE-OPENS
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the case for the limited purpose of determining whether Petitioner should be
allowed to proceed on his habeas claims.
Petitioner’s request to proceed on his habeas claims must be denied
because he failed to comply with the conditions set forth in the Court’s order
staying and administratively closing the case. The Court conditioned the stay
on Petitioner returning to state court within 60 days of the Court’s stay order,
exhausting his state court remedies, and then moving to re-open his case on
an amended petition within 60 days of the conclusion of his state collateral
review proceedings. Petitioner did not do so. First, he did not return to the
state trial court within 60 days of this Court’s stay order given that the order
was signed on February 13, 2014 and he filed his first motion for relief from
judgment with the state trial court on April 21, 2014. Second, he did not
properly exhaust his claims in the state courts because he did not timely seek
leave to appeal with the Michigan Court of Appeals (or the Michigan Supreme
Court). Third, he did not return to this Court within 60 days of the conclusion
of his state collateral review proceedings given that those proceedings ended,
at the latest, on July 18, 2016 when the state trial court denied his second
motion for relief from judgment and he filed his letter request to re-open this
case on October 31, 2016. Fourth, he did not file an amended petition with
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his request to re-open the case. Consequently, Petitioner has failed to comply
with the conditions of the stay.
Accordingly, the Court DENIES Petitioner's letter request to proceed on
his habeas claims. Rather, in accordance with precedent from the United
States Court of Appeals for the Sixth Circuit, the Court VACATES the stay as
of the date it was entered, February 13, 2014, and DISMISSES the petition for
a writ of habeas corpus. See Palmer v. Carlton, 276 F.3d 777, 780-82 (6th
Cir. 2002) (“If either condition of the stay is not met, the stay may later be
vacated nunc pro tunc as of the date the stay was entered, and the petition
may be dismissed.”); see also Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir.
2014) (affirming district court’s dismissal of petition based upon petitioner’s
failure to comply with conditions of stay). This case is CLOSED for all
purposes.
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 relief on procedural grounds without
addressing the merits of a habeas claim, a certificate of appealability should
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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. 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.
Lastly, the Court DENIES Petitioner leave to proceed in forma pauperis
on appeal as an appeal cannot be taken in good faith. See FED. R. APP. P.
24(a).
IT IS SO ORDERED.
/s/ Gershwin A. Drain
GERSHWIN A. DRAIN
UNITED STATES DISTRICT JUDGE
Dated: November 15, 2016
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record and upon Delbert Hughes,
#625617, E.C. Brooks Correctional Facility, 2500 S. Sheridan Drive, Muskegon Heights,
MI, 49444 on November 15, 2016, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk
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