Brontkowski v. Gidley

Filing 6

MEMORANDUM OPINION and ORDER Summarily Dismissing Without Prejudice the 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Granting Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALLEN ROY BRONTKOWSKI,
Petitioner,

Civil No. 2:15-CV-11073
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
LORI GIDLEY,
Respondent,
_________________________/

OPINION AND ORDER SUMMARILY DISMISSING WITHOUT PREJUDICE
THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO PROCEED
IN FORMA PAUPERIS ON APPEAL
Allen Roy Brontkowski, (“petitioner”), confined at the Central Michigan
Correctional Facility in St. Louis, Michigan, seeks the issuance of a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner
challenges his conviction for extortion, M.C.L.A. 750.213, four counts of unlawful
imprisonment, M.C.L.A. 750.349b, assault, M.C.L.A. 750.81, and possession of a
firearm during a felony (felony firearm), M.C.L.A. 750.227b. For the reasons
stated below, the petition for writ of habeas corpus is DISMISSED WITHOUT
PREJUDICE.
I. Background
Petitioner was convicted following a jury trial in the Macomb County Circuit
Court.
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Brontkowski v. Gidley, 2:15-CV-11073
Petitioner filed an appeal of right, in which he raised the following claims:
Did the prosecutor deny Mr. Brontkowski due process and a fair trial by
failing to reveal the complete plea agreement with the accomplicewitness for his testimony thereby misleading the jury regarding the
witness’s credibility; was trial counsel ineffective for failing to
adequately cross-examine the witness on this issue, US Const. Am
XIV?
Petitioner’s conviction was affirmed on appeal. People v. Brontkowski, No.
313002, 2014 WL 1233894 (Mich. Ct. App. Mar. 25, 2014); lv. Den. 497 Mich.
855, 852 N.W.2d 630 (2014).
On March 12, 2015, petitioner filed a petition for writ of habeas corpus with
this Court. 1 In addition to seeking relief on the claims that he raised on direct
appeal, petitioner also seeks habeas relief on the following “new issues”:
I. DNA evidence needs to be considered by the court. Via trial
transcripts there was no DNA on the weapon that the victim claims to
have been pistol whipped indicating that the victim lied in regards to the
testimony given.
II. The prosecutor is bound by the rules of ethics and court rules from
having witnesses lie in order to obtain a conviction.

1

Under the prison mailbox rule, a federal habeas petition is filed when the
prisoner gives his petition to prison officials for mailing to the federal courts.
Hudson v. Martin, 68 F. Supp. 2d 798, 799, n. 2 (E.D. Mich. 1999). Absent
evidence to the contrary, a federal court will assume that a prisoner gave his
habeas petition to prison officials on the date he signed it, for the purposes of the
AEDPA’s one year limitations period. Id. Because petitioner’s habeas petition is
signed and dated March 12, 2015, this Court assumes that this was the date that
petitioner actually filed his petition with this Court.
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Brontkowski v. Gidley, 2:15-CV-11073
III. DVD evidence statement taken by the police that the prosecution
or defense counsel refused to show the jury. Failure on the part of the
aforementioned parties to enter the evidence shows that the
government was willing to hide the truth about the events leading to the
charges in which the defendant was convicted of. This issue violates
the defendant’s rights under XVI Amendments of the Constitution. The
right of due process is absolute and cannot be infringed upon.
IV. Defendant insists he was never read his Miranda rights by police.
V. Defendant contends that prosecutorial misconduct is apparent. The
prosecutor’s office had a duty to provide defendant with the totality of
the discovery packet. For such is not an option for the prosecutor.
Furthermore, even if the prosecutor failed to provide all evidence that
prosecutor should have known that this is a judiciary responsibility and
to do otherwise is a clear violation of Michigan Court Rules coupled
with code of ethics for the officers of the court. Moreover, the standard
of conduct should be held at its highest regarding such an office. The
trust of the public cannot and should not diminish. The defendant
contends that this new issue should have been brought forth at the
lower courts (i.e.) The Michigan Court of Appeals and the Michigan
Supreme Court but has not. Moreover, defendant asserts that new
issues have been exhausted at the trial level.
VI. Mr. Allen Brontkowski received ineffective assistance during court
proceedings in violation of his state and federal rights by his defense
counsel and thereby committing malpractice by defense counsel. The
trial court abused its discretion when it did not establish the failed
attempts of the defense counsel to identify the rules of law as it related
to witnesses’ testimony under oath. Appointed counsel having
abdicated his responsibility failed the defendant thus violated
defendant’s 5th, 6th, and 14th Amendment rights.

II. Discussion
The instant petition must be dismissed because it contains claims that
petitioner has failed to exhaust with the state courts.
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Brontkowski v. Gidley, 2:15-CV-11073
As a general rule, a state prisoner seeking federal habeas relief must first
exhaust his 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). Federal district courts must dismiss mixed habeas
petitions which contain both exhausted and unexhausted claims. 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. Benoit v. Bock, 237 F. Supp. 2d 804, 806 (E.D. Mich. 2003); 28
U.S.C. § 2254(b)(3).
A habeas petitioner has the burden of proving that he or she has
exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155, 160
(6th Cir. 1994). Federal habeas corpus relief is unavailable to a state prisoner
who fails to allege that he or she has exhausted his or her available state court
remedies. See Granville v. Hunt, 411 F. 2d 9, 11 (5th Cir. 1969). The instant
petition is subject to dismissal, because petitioner failed to allege or indicate in his
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Brontkowski v. Gidley, 2:15-CV-11073
petition that he has exhausted his state court remedies with respect to his claims.
See Peralta v. Leavitt, 56 Fed. Appx. 534, 535 (2nd Cir. 2003); See also Fast v.
Wead, 509 F. Supp. 744, 746 (N.D. Ohio 1981). Petitioner, in fact, acknowledges
on the face of his petition that he did not properly exhaust his new claims prior to
seeking habeas relief. Although petitioner indicates that he exhausted these
claims at the trial level, this would be insufficient to satisfy the exhaustion
requirement. The exhaustion requirement is satisfied only if a prisoner invokes
one complete round of the state’s established appellate review process, including
a petition for discretionary review to a state supreme court. O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). A Michigan petitioner must present each
ground to both Michigan appellate courts before seeking federal habeas corpus
relief. See Mohn v. Bock, 208 F.Supp.2d 796, 800 (E.D.Mich.2002); see also
Baldwin v. Reese, 541 U.S. 27, 29 (2004). Because petitioner’s new claims were
never presented to the Michigan appellate courts; they have not been properly
exhausted.
Petitioner’s method of properly exhausting his unexhausted claims in the
state courts would be through filing a motion for relief from judgment with the
Macomb 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. 6.5055

Brontkowski v. Gidley, 2:15-CV-11073
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. 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 the claims that he would raise in a post-conviction motion. See
e.g. Mohn v. Bock, 208 F. Supp. 2d at 800.
Petitioner has failed to exhaust his state court remedies with respect to all
of the claims raised in his petition. Although a district court has the discretion to
stay a mixed habeas petition containing both exhausted and unexhausted claims
to allow the petitioner to present his unexhausted claims to the state court in the
first instance, See Rhines v. Weber, 544 U.S. 269 (2005), a stay of the petition is
unnecessary in this case. The Michigan Supreme Court denied petitioner’s
application for leave to appeal on September 5, 2014. However, the one year
statute of limitations under 28 U.S.C. § 2244(d)(1) did not begin to run on that
day. Where a state prisoner has sought direct review of his conviction in the
state’s highest court but does not file a petition for certiorari with the U.S.
Supreme Court, the one year limitation period for seeking habeas review under
28 U.S.C. § 2244(d)(1) begins to run not on the date that the state court entered
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Brontkowski v. Gidley, 2:15-CV-11073
judgment against the prisoner, but on the date that the 90 day time period for
seeking certiorari with the U.S. Supreme Court expired. See Jimenez v.
Quarterman, 555 U.S. 113, 119 (2009). Because petitioner did not seek a writ of
certiorari with the United States Supreme Court, petitioner’s judgment became
final, for the purpose of commencing the running of the one year limitations
period, on December 4, 2014. See Grayson v. Grayson, 185 F. Supp. 2d 747,
750 (E.D. Mich. 2002).
Petitioner filed the instant petition with this Court on March 12, 2015, after
only three months had elapsed on the one year statute of limitations. This Court
is dismissing the petition without delay so that petitioner can return to the state
courts to exhaust these claims. 28 U.S.C. § 2244(d)(2) expressly provides that
the AEDPA’s one year statute of limitations is tolled during the pendency of any
state post-conviction motion filed by petitioner. Because petitioner has almost an
entire year remaining under the limitations period, and the unexpired portion of
that period would be tolled during the pendency of petitioner’s state postconviction proceedings, petitioner would not be prejudiced if his habeas petition
was dismissed without prejudice during the pendency of his motion for postconviction relief. Thus, a stay of the proceedings is not necessary or appropriate
to preserve the federal forum for petitioner’s claims. See Schroeder v. Renico,
156 F. Supp. 2d 838, 845-46 (E.D. Mich. 2001). Accordingly, the Court will
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Brontkowski v. Gidley, 2:15-CV-11073
dismiss the instant petition without prejudice.
III. Conclusion
The Court dismisses the petition for writ of habeas corpus without
prejudice. The Court also denies petitioner a certificate of appealability. A
habeas petitioner must receive a certificate of appealability (“COA”) in order to
appeal the denial of a habeas petition for relief from either a state or federal
conviction. 2 28 U.S.C. §§ 2253(c)(1)(A), (B). A court may issue a COA “only if
the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is
required to show that reasonable jurists could debate whether, or agree that, the
petition should have been resolved in a different manner, or that the issues
presented were adequate to deserve encouragement to proceed further. Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). When a district court denies a habeas
petition on procedural grounds without reaching the prisoner’s underlying
constitutional claims, a certificate of appealability should issue, and an appeal of
the district court’s order may be taken, if the petitioner shows that jurists of

2

Effective December 1, 2009, the newly created Rule 11 of the Rules
Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll.
§ 2254, provides that “[t]he district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.” Rule 11(a), 28
U.S.C. foll. § 2254.
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Brontkowski v. Gidley, 2:15-CV-11073
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. Id. When a plain
procedural bar is present and the district court is correct to invoke it to dispose of
the case, a reasonable jurist could not conclude either that the district court erred
in dismissing the petition or that the petition should be allowed to proceed further.
In such a circumstance, no appeal would be warranted. Id.
The Court declines to issue a certificate of appealability, because “jurists of
reason” would not find it debatable whether this Court was correct in its
procedural ruling that petitioner had failed to exhaust an available state court
remedy with respect to his claims. See Colbert v. Tambi, 513 F. Supp. 2d 927,
939 (S.D. Ohio 2007).
Although this Court will deny a certificate of appealability to petitioner, the
standard for granting an application for leave to proceed in forma pauperis (IFP)
is a lower standard than the standard for certificates of appealability. See Foster
v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)(citing United States v.
Youngblood, 116 F. 3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate of
appealability may only be granted if petitioner makes a substantial showing of the
denial of a constitutional right , a court may grant IFP status if it finds that an
appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.
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R.App.24 (a). “Good faith” requires a showing that the issues raised are not
frivolous; it does not require a showing of probable success on the merits. Foster,
208 F. Supp. 2d at 765. Although jurists of reason would not debate this Court’s
resolution of petitioner’s claims, the issues are not frivolous; therefore, an appeal
could be taken in good faith and petitioner may proceed in forma pauperis on
appeal. Id.
III. CONCLUSION
Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is
SUMMARILY DISMISSED WITHOUT PREJUDICE. (Dkt. # 1).
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner will be granted leave to appeal
in forma pauperis.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: April 10, 2015
I hereby certify that a copy of the foregoing document was served upon
parties/counsel of record on April 10, 2015, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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