Bullard v. Michigan, State of
OPINION and ORDER Holding in Abeyance the 1 Petition for a Writ of Habeas Corpus and Administratively Closing the Case. Signed by District Judge Denise Page Hood. (SBur)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Civil No. 2:14-CV-12252
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR A
WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE
Keith Bullard, (“Petitioner”), presently confined at the Alger Maximum
Correctional Facility in Munising, Michigan, filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction
for second-degree criminal sexual conduct, M.C.L.A. § 750.520c(1)(A).
Respondent filed an answer to the petition. As part of the answer,
respondent asks this Court to dismiss the petition on the ground that
petitioner’s sixth claim, pertaining to the trial judge’s utilization of factors to
increase his minimum sentence that were not submitted to the jury, is
unexhausted. In lieu of dismissing the petition for writ of habeas corpus,
the Court will hold the petition in abeyance and will stay the proceedings
under the terms outlined below in the opinion to permit petitioner to return
to the state courts to exhaust the additional claim, failing which the petition
shall be dismissed without prejudice. The Court will also administratively
close the case.
Petitioner was convicted of the above offenses following a jury trial in
the Huron County Circuit Court. Petitioner’s conviction was affirmed on
appeal. People v. Bullard, No. 310854 (Mich. Ct. App. Jun. 19, 2013), lv.
den. 840 N.W.2d 357 (Mich. 2013).
Petitioner filed his petition for a writ of habeas corpus on June 6,
2014, in which he sought habeas relief on the following grounds:
I. In prohibiting admission of defense expert testimony, the trial
court violated the rules of evidence, and the constitutional right
to present a defense.
II. The trial court’s improper admission of hearsay evidence of
complainant’s statement to Kevin Scherret and hospital staff
rendered the trial unfair and violated Mr. Bullard’s due process
III. Conviction is based on the testimonial hearsay statements
of an unavailable declarant. Violation of Sixth Amendment right
to confrontation by admitting the statements and reports at the
IV. Violation of right to counsel, where there was a breakdown
in the relationship with counsel, the trial judge refused request
for new counsel without an adequate inquiry into the
V. The trial court denied Appellant his constitutional due
process right to a fair trial and abused its discretion by denying
the motion to appoint an expert in forensic interviewing.
VI. Appellant’s Sixth and Fourteenth Amendment rights were
violated by judicial fact finding which increased the floor of the
The petition for writ of habeas corpus is subject to dismissal because
petitioner has not properly exhausted his sixth claim alleging that the trial
court judge used factors that had not been submitted to the jury to increase
his minimum sentence.
As a general rule, a state prisoner seeking federal habeas relief must
first exhaust his or her available state court remedies before raising a claim
in federal court. 28 U.S.C. § 2254(b) and(c); Picard v. Connor, 404 U. S.
270, 275-78 (1971); Hannah v. Conley, 49 F.3d 1193, 1195 (6th Cir. 1995).
A petition for a writ of habeas corpus filed by a state prisoner shall not be
granted unless the petitioner has exhausted his available state court
remedies, there is an absence of available state corrective process, or
circumstances exist that render such process ineffective to protect the
petitioner’s rights. See Turner v. Bagley, 401 F.3d 718, 724 (6th Cir. 2005).
Although exhaustion is not a jurisdictional matter, “it is a threshold question
that must be resolved” before a federal court can reach the merits of any
claim contained in a habeas petition. See Wagner v. Smith, 581 F.3d 410,
415 (6th Cir. 2009). Therefore, each claim must be reviewed by a federal
court for exhaustion before any claim may be reviewed on the merits by a
district court. Id. Federal district courts must dismiss mixed habeas
petitions which contain both exhausted and unexhausted claims. See Pliler
v. Ford, 542 U.S. 225, 230 (2004)(citing Rose v. Lundy, 455 U.S. 509, 510,
Petitioner added a sentencing issue on his appeal to the Michigan
Supreme Court but did not raise it before the Michigan Court of Appeals.
Raising a claim for the first time before the state courts on discretionary
review does not amount to a “fair presentation” of the claim to the state
courts for exhaustion purposes. See Castille v. Peoples, 489 U.S. 346, 351
(1989). Because petitioner failed to present his sixth claim in his appeal
with the Michigan Court of Appeals, his subsequent presentation of this
claim to the Michigan Supreme Court did not satisfy the exhaustion
requirement for habeas purposes. See Skinner v. McLemore, 425 F.App’x.
491, 494 (6th Cir. 2011) Farley v. Lafler, 193 F.App’x. 543, 549 (6th Cir.
2006); Schroeder v. Renico, 156 F. Supp. 2d 838, 844, n. 5 (E.D. Mich.
2001); Winegar v. Corrections Department, 435 F. Supp. 285, 288-89
(W.D. Mich. 1977).
A habeas petitioner may not present a “mixed” petition containing
both exhausted and unexhausted claims to a federal court. Rockwell v.
Yukins, 217 F.3d 421, 423 (6th Cir. 2000). Although this requirement is not
jurisdictional, a petition that includes unexhausted claims will ordinarily not
be considered by a federal court absent exceptional or unusual
circumstances. Rockwell, 217 F.3d at 423. Moreover, with the
Antiterrorism and Effective Death Penalty Act (AEDPA), Congress made it
clear that the only circumstance in which mixed petitions may be
considered by a district court is where the court determines that the petition
must be dismissed in its entirety. Id. at 424.
Exhausting state court remedies in this case requires the filing of a
post-conviction motion for relief from judgment under Michigan Court Rule
6.500, et. seq. See Wagner, 581 F.3d at 419. Petitioner could exhaust his
unexhausted claim by filing a post-conviction motion for relief from
judgment with the Huron County Circuit Court under M.C.R. 6.502. A trial
court is authorized to appoint counsel for petitioner, seek a response from
the prosecutor, expand the record, permit oral argument, and hold an
evidentiary hearing. M.C.R. 6.505-6.507, M.C.R. 6.508 (B) and (C). Denial
of a motion for relief from judgment is reviewable by the Michigan Court of
Appeals and the Michigan Supreme Court upon the filing of an application
for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. See Nasr v.
Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997). Petitioner, in fact, is
required to appeal the denial of his post-conviction motion to the Michigan
Court of Appeals and the Michigan Supreme Court in order to properly
exhaust any claims that he would raise in his post-conviction motion. See
e.g. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002).
The Court’s only concern in dismissing the current petition involves
the possibility that petitioner might be prevented under the one year statute
of limitations contained within 28 U.S.C. § 2244(d)(1) from re-filing a
petition for a writ of habeas corpus following the exhaustion of these issues
in the state courts.
A common circumstance calling for abating a habeas petition arises
when the original petition was timely filed, but a second, exhausted habeas
petition would be time barred by the AEDPA’s statute of limitations. See
Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002).
A federal district court has the discretion to stay a mixed habeas
petition containing exhausted and unexhausted claims in order to allow the
petitioner to present his unexhausted claims to the state courts in the first
instance, and then to return to the federal district court for habeas review of
his or her completely exhausted petition. See Rhines v. Weber, 544 U.S.
269, 272-78 (2005). However, even where it is appropriate to stay the
habeas petition and hold it in abeyance pending exhaustion in the state
courts, because of the timeliness concerns reflected in the AEDPA, a
mixed habeas petition should not be stayed indefinitely. Id. at 278.
Therefore, district courts should place reasonable time limits on a
petitioner’s return to state court and back. Id. The Supreme Court
indicated that “[I]t likely would be an abuse of discretion for a district court
to deny a stay and to dismiss a mixed petition if the petitioner had good
cause for his failure to exhaust, his unexhausted claims are potentially
meritorious, and there is no indication that the petitioner engaged in
intentionally dilatory litigation tactics. In such circumstances, the district
court should stay, rather than dismiss, the mixed petition.” Id. 1
This Court has the discretion to stay the petition and hold it in abeyance even though petitioner
did not specifically request this Court to do so. See e.g. Banks v. Jackson, 149 F.App’x. 414, 422, n. 7 (6th
Petitioner’s claim does not appear to be “plainly meritless.” Wagner,
581 F.3d at 419. Furthermore, petitioner may assert that he did not
previously raise this claim in the state courts due to the ineffective
assistance of appellate counsel. Id., at 419, nn. 4 and 5. Finally, it does not
appear that petitioner has engaged in “intentionally dilatory tactics.”
When a district court determines that a stay is appropriate pending
exhaustion, the district court “should place reasonable time limits on a
petitioner’s trip to state court and back.” Rhines, 544 U.S. at 278. To
ensure that there are no delays by petitioner in exhausting state court
remedies, this Court imposes time limits within which petitioner must
proceed with his state court post-conviction proceedings. See Palmer v.
Carlton, 276 F.3d 777, 781 (6th Cir. 2002).
The Court holds the petition in abeyance to allow petitioner to initiate
post-conviction proceedings in the state courts. This tolling is conditioned
upon petitioner initiating his state post-conviction remedies within ninety
days of receiving this Court’s order and returning to federal court within
sixty days of completing the exhaustion of state court post-conviction
remedies. Hargrove, 300 F.3d at 721; see also Geeter v. Bouchard, 293 F.
Supp. 2d 773, 775 (E.D. Mich. 2003).
It is ORDERED that petitioner may file a motion for relief from
judgment with the state court within ninety (90) days of receipt of this
Court’s order. If petitioner fails to file a motion for relief from judgment
with the state courts by that date, the Court will dismiss his petition without
If petitioner files a motion for relief from judgment, he shall notify this
Court that such motion papers have been filed in state court. The case will
then be held in abeyance pending petitioner’s exhaustion of the claims.
Petitioner shall re-file a habeas petition within sixty (60) days after the
conclusion of the state court post-conviction proceedings. Petitioner
is free at that time to file an amended habeas petition which contains newly
To avoid administrative difficulties, the Court ORDERS the Clerk of
Court to CLOSE this case for statistical purposes only. Nothing in this
order or in the related docket entry shall be considered a dismissal or
disposition of this matter. See Sitto v. Bock, 207 F. Supp. 2d at 677.
It is further ORDERED that upon receipt of a motion to reinstate the
habeas petition following exhaustion of state remedies, the Court may
order the Clerk to reopen this case for statistical purposes.
S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: October 31, 2016
I hereby certify that a copy of the foregoing document was served upon counsel
of record on October 31, 2016, by electronic and/or ordinary mail.
S/Shawna C. Burns
Case Manager Generalist
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?