Villeneuve v. Romanowski

Filing 16

OPINION and ORDER Granting Petitioner's 13 Motion to File an Amended Petition, Holding in Abeyance the 1 Petition for Writ of Habeas Corpus and Administratively Closing the Case, and Denying the 14 MOTION for Appointment of Counsel. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOHN VILLENEUVE,
Petitioner,
v.

Civil No. 2:14-CV-13768
HONORABLE DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE

KENNETH ROMANOWSKI,
Respondent,
____________________________________/
OPINION AND ORDER GRANTING PETITIONER’S MOTION TO FILE AN
AMENDED PETITION, HOLDING IN ABEYANCE THE PETITION FOR WRIT
OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE, AND
DENYING THE MOTION FOR THE APPOINTMENT OF COUNSEL.
John Villeneuve, (“Petitioner”), confined at the Macomb Correctional
Facility in New Haven, Michigan, filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner
challenges his convictions for first-degree criminal sexual conduct, M.C.L.A.
750.520(b).
Petitioner has filed a motion to file an amended habeas petition. The Court
will grant the motion to amend the habeas petition. Petitioner, however, seeks to
add new claims in this amended petition which were not properly raised before
the state courts. In lieu of dismissing the petition, the Court holds the petition in
abeyance and stays the proceedings under the terms outlined in this opinion to
permit petitioner to return to the state courts to exhaust his additional claims. The
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Court will also administratively close the case. The Court denies petitioner’s
motion for the appointment of counsel.
I. Background
Petitioner pleaded guilty to two counts of first-degree criminal sexual
conduct in the Alpena County Circuit Court. Petitioner was originally sentenced
to life in prison.
In 2012, petitioner filed a motion for relief from judgment with the trial court,
in which he raised several claims related to his plea and sentencing. The trial
judge appointed counsel for petitioner. At the motion hearing, petitioner’s
appellate counsel informed the judge that petitioner no longer wished to withdraw
his guilty plea but proceed with re-sentencing. Counsel essentially asked the trial
court to treat petitioner’s motion for relief from judgment as a motion for resentencing. Petitioner agreed on the record that he wished to proceed simply
with re-sentencing. The judge agreed to order a re-sentencing, noting that he
had mistakenly believed that petitioner was subject to a mandatory minimum 25
year prison term. (Tr. 1/4/13, pp. 3-8).
On March 13, 2013, petitioner was re-sentenced to fifteen to thirty years in
prison. The judge advised petitioner that he could file an application for leave to
appeal from the re-sentencing. (Tr. 3/13/13, pp. 50-51).
Petitioner’s counsel appealed to the Michigan Court of Appeals, raising a
single claim that the court violated petitioner’s due process rights by considering
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uncharged allegations made by another victim that had been mentioned in the
pre-sentence investigation report, where petitioner denied the allegations and the
judge failed to make findings of fact with respect to those allegations. The
Michigan Court of Appeals denied the appeal “for lack of merit in the grounds
presented.” People v. Villeneuve, No. 316173 (Mich.Ct.App. December 18, 2013).
Petitioner did not seek leave to appeal with the Michigan Supreme Court. 1
On January 24, 2014, petitioner filed this application for writ of habeas
corpus, in which he seeks habeas relief on the following claims: 2
I. The court erred when sentencing plaintiff using inaccurate
information, resulting in an Eighth Amendment violation of due
process right.
II. An illegal amendment was made to the presentence investigation
report during the sentencing and resentencing procedure, causing an
Eighth Amendment violation.
III. Untrue, inaccurate, and challenged information included in the
presentence investigation report was never dealt with on record,
causing undue prejudice to the plaintiff.
IV. The presentence investigation report in this case contains
information ordered to be removed, prejudicing the plaintiff before
the Michigan Department of Corrections.
Petitioner has filed a request to file an amended or supplemental habeas
petition, in which he wishes to raise issues involving misidentification, a delay in

1

See Affidavit from Larry Royster, Clerk of the Michigan Supreme Court. [Dkt. # 8-14].

2

Under the prison mailbox rule, this Court will assume that petitioner actually filed his habeas
petition on January 24, 2014, the date that it was signed and dated. See Towns v. U.S., 190 F. 3d 468,
469 (6th Cir. 1999).

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prosecution, that his guilty plea was involuntary, and the ineffective assistance of
appellate counsel.
II. Discussion
A. The Court grants the motion to amend the petition.
The decision to grant or deny a motion to amend a habeas petition is within
the discretion of the district court. Clemmons v. Delo, 177 F. 3d 680, 686 (8th Cir.
1999); citing to Fed.R.Civ.P. Rule 15. Notice and substantial prejudice to the
opposing party are the critical factors in determining whether an amendment to a
habeas petition should be granted. Coe v. Bell, 161 F. 3d 320, 341-342 (6th Cir.
1998). Delay by itself is not sufficient to deny a motion to amend. Id. at 342.
The Court will permit petitioner to amend his petition to include these
additional claims. Petitioner’s proposed amended habeas petition advances new
claims that may have arguable merit, was not the subject of undue delay, and
would not unduly prejudice respondent. Accordingly, the motion to amend should
be granted. See Riley v. Taylor, 62 F. 3d 86, 92 (3rd Cir. 1995).
B. The Court will hold petitioner’s mixed petition in abeyance to
permit him to exhaust these claims in the state courts.
The petition is now subject to dismissal because it contains several claims
which were not properly exhausted with the state courts.
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

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court. 28 U.S.C. § 2254(b) and (c). See Picard v. Connor, 404 U. S. 270, 275-78
(1971). 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 federal 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, 522 (1982)). The failure to
exhaust state court remedies may be raised sua sponte by a federal court. See
Benoit v. Bock, 237 F. Supp. 2d 804, 806 (E.D. Mich. 2003); 28 U.S.C. §
2254(b)(3).
A review of petitioner’s appeal before the Michigan Court of Appeals shows
that the only claim that was raised on petitioner’s direct appeal was his claim that
the trial judge improperly considered allegations of uncharged criminal conduct
when sentencing petitioner. 3 Appellate counsel did not raise any claims relating
to possible misidentification, delays in prosecution, or the voluntariness of
petitioner’s plea. Petitioner, in fact, claims in his request to amend the petition
that appellate counsel was ineffective for failing to raise these claims on his direct
appeal. Appellate counsel certainly did not raise any claim involving his own
3

See Application for Leave to Appeal. [part of this Court’s Dkt. # 8-13].

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alleged ineffectiveness. The claims are unexhausted and the petition is subject
to dismissal. 4
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 writ
of habeas corpus following the exhaustion of his claim in the state courts.
A habeas petitioner who is concerned about the possible effects of his or
her state post-conviction filings on the statute of limitations could file a
“protective” petition in federal court and then ask for the petition to be held in
abeyance pending the exhaustion of state post-conviction remedies. See Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005)(citing Rhines v. Weber, 544 U.S. 269
(2005)). A federal court may stay a federal habeas petition and hold further
proceedings in abeyance pending resolution of state court post-conviction
proceedings, provided there is good cause for failure to exhaust claims and that
the unexhausted claims are not “plainly meritless.” Rhines, 544 U.S. at 278.
Petitioner’s claims do not appear to be “plainly meritless.” Wagner v. Smith,
581 F. 3d at 419. Further, petitioner asserts that he did not previously raise these
claims in the state courts due to the ineffective assistance of appellate counsel.
Id., at 419, nn. 4 and 5. Petitioner also has good cause for failing to raise his

4

Petitioner also appears to raise a claim in his original petition that his appellate counsel was
ineffective at his re-sentencing. This claim, too, has yet to be exhausted with the state courts.

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ineffective assistance of appellate counsel claim earlier because state
post-conviction review would be the first opportunity that he had to raise this
claim in the Michigan courts. See Guilmette v. Howes, 624 F. 3d 286, 291 (6th Cir.
2010). Finally, there is no showing that petitioner has been dilatory in seeking
relief.
However, even where a district court determines that a stay is appropriate
pending exhaustion of state court remedies, the district court “should place
reasonable time limits on a petitioner’s trip to state court and back.” Rhines, 544
U.S. at 278. Therefore, to ensure that there are no delays by petitioner in
exhausting his state court remedies, this Court will impose upon petitioner time
limits within which he must proceed with his state court post-conviction
proceedings. See Palmer v. Carlton, 276 F. 3d 777, 781 (6th Cir. 2002). Petitioner
must present his claims in state court by filing a post-conviction motion for relief
from judgment with the state trial court within sixty days from the date of this
Order. See id. Further, he must ask this Court to lift the stay within sixty days of
exhausting his state court remedies. See id. “If the conditions of the stay are 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.” Palmer, 276 F. 3d at 781 (internal
quotation omitted).
Petitioner has an available state court remedy with which to exhaust his
claims. Exhausting state court remedies in this case requires the filing of a post7

conviction motion for relief from judgment with the trial court under Michigan
Court Rule 6.500, et. seq. See Wagner, 581 F. 3d at 419. 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, 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 is raising in his post-conviction motion. See
e.g. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002).
The Court is aware that petitioner already filed a motion for relief from
judgment prior to his re-sentencing. Pursuant to M.C.R. 6.502(G)(1), a criminal
defendant in Michigan can typically file only one motion for relief from judgment
with regard to a criminal conviction. See Banks v. Jackson, 149 Fed. Appx. 414,
418 (6th Cir. 2005); Hudson v. Martin, 68 F. Supp. 2d 798, 800 (E.D. Mich. 1999)
(citing to People v. Ambrose, 459 Mich. 884; 587 N. W. 2d 282 (1998)).
Petitioner, however, can probably file a motion for relief from judgment
because his first motion for relief from judgment was never adjudicated as such,
but was for all intents and purposes treated as a motion for re-sentencing.
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Appellate counsel indicated in his brief on appeal that petitioner basically
converted his motion for relief from judgment into a motion for re-sentencing. 5
More importantly, petitioner was re-sentenced by the judge on March 13, 2013.
Subchapter 6.500 of the Michigan Court Rules addresses the procedure a
criminal defendant may use to obtain postappeal or post-conviction relief. A
second sentence that is imposed by a judge following a re-sentencing does not
fall within the provisions of M.C.R. 6.500, et. Seq. See People v. Martinez, 193
Mich. App. 377, 380-82, 485 N.W. 2d 124, 126 (1992)(M.C.R. 6.509, the rule
governing appeals from the denial of motions for relief from judgment, was
inapplicable where defendant appealed from his re-sentencing and not the
original conviction and sentence); See also People v. Rhoades, 467 Mich. 946,
656 N.W.2d 525 (2003)(“for purposes of MCR 6.502(G)(1), the [Michigan
Supreme] Court notes that contrary to the trial court’s characterization of
defendant’s motion as a motion for relief from judgment, defendant properly
designated his motion as motion for resentencing”). Further evidence that
petitioner’s motion was not treated as a motion for relief from judgment is the fact
that the Michigan Court of Appeals did not rely on M.C.R. 6.508(D) to deny
petitioner’s appeal, as it typically does in appeals from the denial of postconviction motions, but denied relief “for lack of merit in the grounds presented.”

5

See Application for Leave to Appeal, p. 1, citing to Tr. 1/4/13, pp. 3-4 [part of this Court’s Dkt. #

8-13].

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Moreover, assuming that petitioner’s previous motion would be considered
as a motion for relief from judgment, he may nonetheless be entitled to file a
second motion for relief from judgment. M.C.R. 6.502(G)(2) states that a
defendant may file a second or subsequent motion based on a retroactive change
in law that occurred after the first motion for relief from judgment or a claim of
new evidence that was not discovered before the first such motion. Banks, 149
Fed. Appx. at 418; Hudson, 68 F. Supp. 2d at 800-01. Petitioner wishes to raise
an ineffective assistance of appellate counsel claim as well as an ineffective
assistance of counsel claim at re-sentencing. Both claims clearly only accrued
after petitioner filed his motion for relief from judgment.
This Court “should exercise caution in finding that” 6.502(G) would bar
petitioner from presenting these claims to the Michigan courts. Banks, 419 Fed.
Appx. at 418. Because there is some likelihood that the Michigan courts might
permit petitioner to file a second post-conviction motion for relief from judgment
pursuant to one of the exceptions contained in M.C.R. 6.502(G)(2), particularly
the newly discovered evidence exception, a procedural bar to such a second
motion is not clearly applicable, therefore, this Court should grant petitioner a stay
of proceedings to permit him to attempt to exhaust the claims contained in his
motion for relief from judgment with the state courts. See Banks, 149 Fed. Appx.
at 419-20.
Finally, the Court will deny petitioner’s motion for the appointment of
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counsel. There is no constitutional right to counsel in habeas proceedings.
Cobas v. Burgess, 306 F. 3d 441, 444 (6th Cir. 2002). The decision to appoint
counsel for a federal habeas petitioner is within the discretion of the court and is
required only where the interests of justice or due process so require. Mira v.
Marshall, 806 F. 2d 636, 638 (6th Cir. 1986). In light of the fact that petitioner has
failed to exhaust his state court remedies, he is not entitled to the appointment of
counsel to assist him with his habeas petition. See e.g. Dupree v. Jones, 281
Fed.Appx. 559, 561 (7th Cir. 2008).
III. ORDER
IT IS HEREBY ORDERED that petitioner’s motion to amend the petition
[Dkt. 13] is GRANTED.
IT IS FURTHER ORDERED that the proceedings are STAYED and the
Court will hold the habeas petition in abeyance. Petitioner must file a motion for
relief from judgment in state court within sixty days of receipt of this order. If he
fails to file a motion or notify the Court that he has done so, the Court will lift the
stay and will reinstate the original petition for writ of habeas corpus to the Court’s
active docket and will proceed to adjudicate only those claims that were raised in
the original petition.
After petitioner fully exhausts his new claims, he shall file an amended
petition that includes the new claims within sixty days after the conclusion of his
state court post-conviction proceedings, along with a motion to lift the stay.
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Failure to do so will result in the Court lifting the stay and adjudicating the merits
of the claims raised in petitioner’s original habeas petition.
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, 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.
IT IS FURTHER ORDERED that the motion for the appointment of counsel
[Dkt. # 14] is DENIED.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: July 20, 2015
I hereby certify that a copy of the foregoing document was served upon counsel
of record on July 20, 2015, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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