Wayne v. Napel

Filing 6

OPINION and ORDER denying the Petition for Writ of Habeas Corpus; denying a certificate of appealability; and denying leave to proceed in forma pauperis on appeal. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

TERRANCE WAYNE, #168363,
Petitioner,
CASE NO. 2:15-CV-11490
HONORABLE NANCY G. EDMUNDS

v.
ROBERT NAPEL,
Respondent.
__________________________________/

OPINION AND ORDER DENYING 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 Terrance Wayne (“Petitioner”) has filed a pro se petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his current confinement.
Petitioner pleaded no contest to first-degree home invasion, MICH. COMP. LAWS § 750.110a,
in the Macomb County Circuit Court in exchange for the dismissal of a fourth habitual
offender charge and concurrent sentencing with another case in which he pleaded no
contest to assaulting a prison or jail employee. He was sentenced to 6 to 20 years
imprisonment on the home invasion conviction and 289 days in jail (with full credit for time
served) on the assault conviction in 2010.
In his pleadings, Petitioner raises claims concerning the effectiveness of counsel in
advising him to plead no contest to home invasion and his “actual innocence” of home
invasion. Petitioner indicates that he did not pursue a direct appeal of his home invasion
conviction, but pursued a motion for relief from judgment with the state trial court on a

competency issue, which is not included in his current petition.
Promptly after the filing of a habeas petition, the Court must undertake a preliminary
review of the petition to determine whether “it plainly appears from the face of the petition
and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.”
Rule 4, RULES GOVERNING § 2254 CASES; see also 28 U.S.C. § 2243. If, after preliminary
consideration, the Court determines that the petitioner is not entitled to relief, the Court
must summarily dismiss the petition. Id., see also Allen v. Perini, 424 F.2d 134, 141 (6th
Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face).
A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as
well as those containing factual allegations that are palpably incredible or false. See
Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review
required by Rule 4, the Court concludes that Petitioner’s habeas claims are unexhausted
and now barred by procedural default, such that the petition must be denied. The Court
also concludes that a certificate of appealability and leave to proceed in forma pauperis on
appeal must be denied.
II.

Facts and Procedural History
Petitioner tendered his no contest pleas and was sentenced in 2010. He states that

he did not pursue a direct appeal of his convictions in the state courts. Petitioner thereafter
filed a motion for relief from judgment with the state trial court challenging both his home
invasion and assault convictions and raising a competency issue. The state trial court
denied the motion on March 1, 2012. See Opinion and Order attached to petition.
Petitioner states that he did not appeal that decision in the state appellate courts.
Petitioner gave his federal habeas petition to prison officials for mailing on April 21,
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2015.

In his petition, he challenges his home invasion conviction raising claims of

ineffective assistance of counsel and “actual innocence.” The Court has not required
Respondent to file an answer to the petition.
III.

Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified 28

U.S.C. § 2241 et seq., governs this case because Petitioner filed her petition after the
AEDPA’s effective date. Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA provides
the following standard of review:
An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted
with respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim-(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or

(2)

resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.

28 U.S.C. §2254(d) (1996).
IV.

Analysis
A state prisoner filing a petition for a writ of habeas corpus 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). Each issue must be
properly raised before both the Michigan Court of Appeals and the Michigan Supreme
Court to satisfy the exhaustion requirement. Welch v. Burke, 49 F. Supp. 2d 992, 998
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(E.D. Mich. 1999); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The
claims must also be “fairly presented” to the state courts, meaning that the petitioner 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 burden is on the petitioner to
prove exhaustion. Rust, 17 F.3d at 160.
The record shows that Petitioner did not pursue a direct appeal in the state courts
and only raised a competency issue on collateral review in a motion for relief from
judgment. The state trial court denied the motion and Petitioner did not seek leave to
appeal that decision in the state appellate courts. The record further indicates that
Petitioner has not presented his current habeas claims concerning the effectiveness of trial
counsel and his innocence to the state courts on direct appeal or collateral review.
Consequently, his habeas claims are unexhausted.
Moreover, Petitioner no longer has an available means by which to exhaust state
court remedies. First, any attempt to complete the appellate process on collateral review
would be untimely. The trial court denied Petitioner’s motion for relief from judgment on
March 1, 2012. He then had six months to file an application for leave to appeal with the
Michigan Court of Appeals. MICH. CT. R. 6.508(F). He did not do so. Second, any attempt
to file a second motion for relief from judgment would be futile. Under Michigan Court Rule
6.502(G)(1), a criminal defendant is generally permitted to file only one post-conviction
motion for relief from judgment. See, e.g., Gadomski v. Renico, 258 F. App’x 781, 783
(6th Cir. 2007); Hudson v. Martin, 68 F. Supp. 2d 798, 800 (E.D. Mich. 1999). Petitioner’s
ineffective assistance of counsel and innocence claims do not fall within the exceptions

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– a retroactive change in the law or newly-discovered evidence – for filing a second motion
in state court. See MICH. CT. R. 6.508(G)(2).
Because Petitioner has not exhausted his habeas claims in the state courts and no
longer has an available remedy by which to do so, his claims are now defaulted. When
a habeas petitioner fails to properly present claims to the state courts and is barred from
pursuing further relief under state law, he has procedurally defaulted those claims for
purposes of federal habeas review. See Pudelski v. Wilson, 576 F.3d 595, 605 (6th Cir.
2009) (citing Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002)).
Federal habeas relief is precluded on claims which have not been presented to the
state courts in accordance with the state’s procedural rules. Wainwright v. Sykes, 433
U.S. 72, 85-87 (1977). A state prisoner who fails to comply with a state’s procedural rules
waives the right to federal habeas review absent a showing of cause for noncompliance
and actual prejudice resulting from the alleged constitutional violation, or a showing of a
fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750-51 (1991);
Nields v. Bradshaw, 482 F.3d 442 (6th Cir. 2007); Gravley v. Mills, 87 F.3d 779, 784-85
(6th Cir. 1996).
In this case, Petitioner fails to establish cause to excuse his procedural default. Any
deficiencies by defense counsel relative to Petitioner’s direct appeal are immaterial
because Petitioner could have still exhausted his habeas claims by presenting them to the
state courts on collateral review. Yet he failed to do so. Additionally, a prisoner’s pro se
status or lack of knowledge about state court rules does not constitute cause to excuse
a procedural default. Hannah v. Conley, 49 F.3d 1193, 1197 (6th Cir. 1995); Robertson
v. Abramajtys, 144 F. Supp. 2d 829, 838 (E.D. Mich. 2001). The Court need not address

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the issue of prejudice when a petitioner fails to establish cause to excuse a procedural
default. Smith v. Murray, 477 U.S. 527, 533 (1986); Long v. McKeen, 722 F.2d 286, 289
(6th Cir. 1983).
Lastly, Petitioner fails to demonstrate that a fundamental miscarriage of justice has
occurred. The miscarriage of justice exception requires a showing that a constitutional
violation probably resulted in the conviction of one who is actually innocent. Murray v.
Carrier, 477 U.S. 478, 479-80 (1986). To be credible, such a claim of actual innocence
requires a petitioner to support the allegations of constitutional error with new reliable
evidence that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner makes no such showing. Rather, he merely asserts that he was only guilty of
assault and battery, not home invasion, based upon the evidence. Such a claim does not
establish his actual innocence. Actual innocence means factual innocence, not mere legal
insufficiency. Bousley v. United States, 523 U.S. 614, 623 (1998). Petitioner’s habeas
claims are thus barred by procedural default and do not warrant relief.
V.

Conclusion
For the reasons stated, the Court concludes that Petitioner failed to fully exhaust

his habeas claims in the state courts and those claims are now barred by procedural
default. His habeas petition must therefore be denied and dismissed with prejudice.
Before 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 court denies relief on the merits, the substantial
showing threshold is met if the petitioner demonstrates that reasonable jurists would find
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the district court’s assessment of the constitutional claim debatable or wrong. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies relief on procedural grounds
without addressing the merits, a certificate of appealability should 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 court was correct in its procedural ruling. Id.
Having considered the matter, the Court concludes that reasonable jurists could not
debate the correctness of the Court’s procedural ruling and that Petitioner fails to make
a substantial showing of the denial of a constitutional right. No certificate of appealability
is warranted. Nor should Petitioner be granted leave to proceed in forma pauperis on
appeal as an appeal cannot be taken in good faith. FED. R. APP. P. 24(a).
Accordingly;
IT IS ORDERED that the petition for a writ of habeas corpus is DENIED and
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED and that
leave to proceed in forma pauperis on appeal is DENIED.

s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: May 1, 2015

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