Robinson v. Gidley et al

Filing 5

OPINION and ORDER dismissing 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying leave to proceed In Forma Pauperis. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHRISTOPHER ROBINSON, #206760,
Petitioner,
CASE NO. 2:15-CV-10572
HON. GEORGE CARAM STEEH

v.
LORI GIDLEY,
Respondent.
/

OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
Michigan prisoner Christopher Robinson (“petitioner”) has filed a pro se petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his current
confinement. The petitioner was convicted of assaulting, resisting, or obstructing a
police officer, MICH. COMP. LAWS § 750.81(d)(1), following a bench trial in the
Washtenaw County Circuit Court. He was sentenced as a third habitual offender,
MICH. COMP. LAWS § 769.11, to two to four years imprisonment, to be served
consecutively to parole violation sentences, in January, 2014.
In his pleadings, the petitioner raises claims concerning his arrest and charges,
the jurisdiction of the police, the validity of the warrant, the trial court’s jurisdiction, the
arraignment and/or waiver of the arraignment, the validity of the complaint, and
representation on arraignment. The petitioner’s pleadings indicate that he did not
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pursue a timely direct appeal of his conviction and that he has not properly sought
and/or completed collateral review of his conviction in the state courts. For the reasons
stated, the Court dismisses without prejudice the petition for a writ of habeas corpus.
The Court also denies a certificate of appealability and denies leave to proceed in
forma pauperis on appeal.
II.

Analysis
A prisoner filing a habeas petition 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”); Rust
v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). To satisfy this requirement, the claims must
be “fairly presented” to the state courts, meaning that the prisoner must have asserted
both the factual and legal bases for the claims in the state courts. McMeans v. Brigano,
228 F.3d 674, 681 (6th Cir. 2000); see also Williams v. Anderson, 460 F.3d 789, 806
(6th Cir. 2006) (citing McMeans). The claims must also be presented to the state courts
as federal constitutional issues. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984).
Each issue must be presented to the Michigan Court of Appeals and the Michigan
Supreme Court to satisfy the exhaustion requirement. Welch v. Burke, 49 F. Supp. 2d
992, 998 (E.D. Mich. 1999); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.
1990). While the exhaustion requirement is not jurisdictional, a “strong presumption”
exists that a prisoner must exhaust available state remedies before seeking federal
habeas review. Granberry v. Greer, 481 U.S. 129, 131, 134-35 (1987). The burden is
on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
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In this case, the petitioner admits that he has not exhausted his habeas claims in
the Michigan courts before proceeding in this Court on federal habeas review.1 The
petitioner has an available avenue for relief in the state court system such that his
pursuit of state court remedies would not be futile. For example, he may file a motion
for relief from judgment with the state trial court under Michigan Court Rule 6.500 et
seq. and seek further review in the state appellate courts as necessary. The
unexhausted claims should be addressed to, and considered by, the state courts in the
first instance. Otherwise, the Court cannot apply the standard found at 28 U.S.C. §
2254.
A federal court has discretion to stay a mixed habeas petition, containing both
exhausted and unexhausted claims, to allow a petitioner to present the unexhausted
claims to the state courts in the first instance and then return to federal court on a
perfected petition. Rhines v. Weber, 544 U.S. 269, 276 (2005). 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.
A stay is unwarranted here. First, the petitioner does not request a stay nor does
he assert that his circumstances justify a stay. Second, the record before this Court
indicates that all of his habeas claims are unexhausted. The Court cannot stay a

1

A document in his pleadings indicates that he filed a complaint for writ of habeas
corpus in the Manistee County Circuit Court in January, 2015.
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petition containing all unexhausted claims. In such a case, a non-prejudicial dismissal
of the petition is appropriate. See Hines v. Romanowski, No. 2:14-CV-13983, 2014 WL
5420135, *2 (E.D. Mich. Oct. 22, 2014) (dismissing case where all claims were
unexhausted); Wilson v. Warren, No. 06-CV-15508, 2007 WL 37756, *2 (E.D. Mich.
Jan.4, 2007) (“in this case, a stay of petitioner's application for a writ of habeas corpus
would be inappropriate, because all of petitioner's claims are unexhausted and thus, the
Court lacks jurisdiction over the petition while the petitioner pursues his claims in state
court”); accord Rasberry v. Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (Rhines stay
and abeyance rule does not apply to a petition alleging only unexhausted claims);
United States v. Hickman, 191 F. App’x 756, 757 (10th Cir. 2006) ( “[t]raditionally, when
a petition contains entirely unexhausted state claims, the petition would be dismissed
without prejudice....”); McDonald v. Bell, No. 1:06–CV–406, 2009 WL 1525970 (W.D.
Mich. June 1, 2009) (concluding that the stay and abeyance procedure does not apply
to petition containing only unexhausted claims and dismissing petition); Mimms v.
Russell, No. 1:08-CV-79, 2009 WL 890509 (S.D. Ohio March 31, 2009) (habeas
petition subject to dismissal where petitioner did not exhaust any of his state court
remedies on any of his habeas claims); Murphy v. Feneis, No. 07-153, 2007 WL
2320540 at *7 (D. Minn. Aug.10, 2007) (“Given the narrow issue before the Supreme
Court regarding mixed petitions, this Court refuses to extend Rhines to allow a court to
stay a habeas petition, so that a petitioner can exhaust his state remedies, where, as
here, the petition contains only unexhausted claims.”).
Third, it appears from the documents attached to the petition that the petitioner
has a state habeas action pending in state court concerning his conviction. He must
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complete the state court process before seeking habeas review of matters which are
the subject of the state court motion. Witzke v. Bell, No. 07-CV-15315, 2007 WL
4557674 (E.D. Mich. Dec. 20, 2007); Harris v. Prelisnik, No. 06-CV-15472, 2006 WL
3759945 (E.D. Mich. Dec. 20, 2006). Dismissal of the petition, rather than a stay of the
proceedings, is warranted under such circumstances. Payne v. MacLaren, No.
14-CV-11427, 2014 WL 6688774, *3 (E.D. Mich. Nov. 26, 2014); Davis v. Warren, No.
13-CV-15215, 2014 WL 186097, *2 (E.D. Mich. Jan. 16, 2014); Glenn v. Rapelje, No.
11-CV-12759, 2011 WL 5039881, *2 (E.D. Mich. Oct. 24, 2011); 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)).
Fourth, the one-year statute of limitations applicable to federal habeas actions,
28 U.S.C. § 2244(d), does not pose a problem for the petitioner to proceed on his
claims following the exhaustion of state court remedies. The petitioner was sentenced
on January 7, 2014. It appears that he did not properly pursue a direct appeal of his
conviction. Consequently, his conviction became final six months later when the time
for filing a delayed application for leave to appeal with the Michigan Court of Appeals
expired, MICH. CT. R. 7.305(G)(3), on or about July 7, 2014. See 28 U.S.C. §
2244(d)(1)(A) (the time for filing a petition under § 2254 runs from “the date on which
the judgment became final by the conclusion of direct review or the expiration of time
for seeking such review”). The petitioner then had one year to file his federal habeas
petition or seek additional state court review. 28 U.S.C. § 2244(d)(2). The petitioner
dated his federal habeas petition on February 4, 2015. At this point, therefore, only
seven months of the one-year period has run. The petitioner thus has sufficient time –
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about five months – to file a new petition containing all of his habeas claims upon the
completion of state court remedies.2 A stay is unwarranted.
Lastly, even assuming that the petitioner has not engaged in “intentionally
dilatory tactics,” he has not shown good cause for failing to exhaust his claims in the
state courts before seeking habeas relief in federal court. The Court also cannot
discern whether the petitioner’s unexhausted claims are “plainly meritless” from his
current pleadings. Given such circumstances, a stay is unwarranted and a nonprejudicial dismissal of the petition is appropriate.
III.

Conclusion
For the reasons stated, the Court concludes that the petitioner has not presented

his habeas claims to the state courts before filing this action, that he must properly
exhaust his claims in the state courts before proceeding on federal habeas review, and
that a stay is unwarranted. Accordingly, the Court DISMISSES WITHOUT PREJUDICE
the petition for a writ of habeas corpus. The Court makes no determination as to the
merits of the petitioner’s claims.
Before the petitioner may appeal the Court’s decision, a certificate of
appealability must issue. 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 district court denies
relief on procedural grounds without addressing the merits of a claim, a certificate of
appealability should issue if it is shown that jurists of reason would find it debatable
2

The Court notes that the petitioner’s state habeas petition may also serve to toll
the one-year period while it remains pending in the state courts.
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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 court was correct in its procedural
ruling. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Having considered the matter,
the Court concludes that reasonable jurists could not debate the correctness of the
Court’s procedural ruling. Accordingly, the Court DENIES a certificate of appealability.
The Court also DENIES leave to proceed in forma pauperis on appeal as an appeal
cannot be taken in good faith. FED. R. APP. P. 24(a).
IT IS SO ORDERED.
Dated: March 11, 2015
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
March 11, 2015, by electronic and/or ordinary mail and also on
Christopher Robinson #206760, Oaks Correctional Facility,
1500 Caberfae Highway, Manistee, MI 49660.
s/Barbara Radke
Deputy Clerk

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