Baker v. Stewart
OPINION and ORDER holding in abeyance the Petition for Writ of Habeas Corpus and administratively closing the case. Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CIVIL NO. 2:15-CV-11629
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER HOLDING IN ABEYANCE
THE PETITION FOR A WRIT OF HABEAS CORPUS
AND ADMINISTRATIVELY CLOSING THE CASE
Corrine Baker, (“Petitioner”), confined at the Huron Valley Women’s
Correctional Facility in Ypsilanti, Michigan, filed a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254, through her counsel David S.
Steingold, in which she challenges her conviction for second-degree
murder, M.C.L.A. § 750.317; and second-degree child abuse, M.C.L.A. §
750.136(b)(3). Respondent has filed an answer to the petition for writ of
habeas corpus. As part of the answer, respondent argues that the petition
is subject to dismissal because it contains claims which have not been
exhausted with the state courts. For the reasons stated below, in lieu of
dismissing the petition without prejudice, 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 her
additional claims. If this fails, the petition will be dismissed without
Petitioner pleaded guilty to the above charges in the Saginaw County
Circuit Court. On February 27, 2012, petitioner was sentenced to thirteen
to thirty years in prison on the second-degree murder charge and two to
four years in prison on the child abuse conviction.
Petitioner’s initial appellate counsel filed a motion to withdraw
petitioner’s guilty plea. The motion was signed and dated August 24, 2012,
and filed with the Court on August 27, 2012.1 Petitioner moved to withdraw
her plea on the ground that trial counsel was ineffective. An evidentiary
hearing was conducted on petitioner’s ineffective assistance of counsel
claims, after which the trial court denied the motion to withdraw the plea.
People v. Baker, No. 10-27347-FC (Saginaw Cty Cir. Ct., June 25, 2013).2
Petitioner’s conviction was affirmed on appeal. People v. Baker, No.
317395 (Mich.Ct.App. Sept. 4, 2013)(Ronayne Krause, J., would grant
See Motion to Withdraw Plea [This Court’s Dkt. # 6-13].
See Dkt. # 6-13.
leave to appeal); lv. den. 496 Mich. 853 (2014).
Petitioner filed a petition for a writ of habeas corpus, seeking habeas
relief on the following claims:
I. Ms. Baker’s plea was not knowingly, understandably and
voluntarily made and was in violation of due process where
counsel provided ineffective assistance of counsel.
A. Mr. Meiers used fear and coercion rending Ms. Baker’s
B. Mr. Meiers gave Ms. Baker misadvice/inaccurate
C. Mr. Meiers failed to properly advise Ms. Baker of her
D. Mr. Meiers did not investigate or prevent (sic) [present]
Respondent contends that petitioner’s habeas application should be
dismissed because it contains claims which have not been 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 court. 28 U.S.C. § 2254(b) and (c). See Picardy 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). 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)).
On her appeal before the Michigan Court of Appeals, petitioner raised
the following claim:
MS. BAKER’S PLEA WAS NOT KNOWINGLY,
UNDERSTANDABLY AND VOLUNTARILY MADE IN
VIOLATION OF DUE PROCESS WHERE COUNSEL
PROVIDED INEFFECTIVE ASSISTANCE BY MISINFORMING
MS. BAKER ON THE LAW.3
This claim appears to correspond with petitioner’s third ineffective
assistance of counsel claim that trial counsel was ineffective in
misinforming petitioner that she could not go to trial but would have to
plead guilty if she wished to testify against her co-defendant. Petitioner did
not raise her other three ineffective assistance of counsel claims before the
See Defendant-Appellant’s Brief in Support of Application For Leave to Appeal. [Dkt. # 6-11].
Michigan Court of Appeals.
Petitioner raised what make up or first, second, and fourth ineffective
assistance of trial counsel claims only for the first time in her application for
leave to appeal before the Michigan Supreme Court.4
When an appellant fails to appeal an issue to the Michigan Court of
Appeals, the issue is considered waived before the Michigan Supreme
Court. Lawrence v. Will Darrah & Associates, Inc., 445 Mich. 1, 4, fn. 2;
516 N.W.2d 43 (1994); Butcher v. Treasury Dept., 425 Mich. 262, 276; 389
N.W.2d 412 (1986). Petitioner’s failure to raise these claims in her appeal
to the Michigan Court of Appeals precluded the Michigan Supreme Court
from considering the new issues that petitioner raised in her application for
leave to appeal before that court.
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 her first, second, and
fourth ineffective assistance of trial counsel claims on her direct appeal with
the Michigan Court of Appeals, her subsequent presentation of these
See Defendant-Appellant’s Application For Leave to Appeal. [Dkt. # 6-12].
claims to the Michigan Supreme Court does 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.
Moreover, although petitioner in her reply brief argues that her first,
second, and fourth ineffective assistance of counsel claims were raised in
her evidentiary hearing before the trial court, this would be insufficient to
exhaust these claims unless they were also presented to the appellate
courts. See Rogers v. Palmer, No. 207-CV-11902, 2010 WL 1881057, at *2
(E.D. Mich. May 11, 2010)(citing Stanley v. Jones, 973 F.2d 680, 682 (8th
Cir. 1992); Bloom v. McKune, 130 F.App’x 229, 232 (10th Cir. 2005).
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
An exception to the exhaustion requirement exists only if there is no
opportunity to obtain relief in the state courts or if the corrective process is
so clearly deficient as to render futile any effort to obtain relief in the state
courts. Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Sitto v. Bock, 207 F.
Supp. 2d 668, 676 (E.D. Mich. 2002). A habeas petitioner, however, has
the burden of showing that all available state court remedies have been
exhausted or that exceptional circumstances exist which would make
exhaustion unnecessary. Doty v. Lund, 78 F. Supp. 2d 898, 901 (N.D. Iowa
1999). Therefore, the exhaustion doctrine, in the context of habeas cases,
turns upon an inquiry of whether there are available state court procedures
for a habeas petitioner to exhaust his or her claims. See Adams v. Holland,
330 F.3d 398, 401 (6th Cir. 2003).
In her reply brief, petitioner argues that exhaustion would be futile
because a criminal defendant cannot file more than one post-conviction
motion for relief from judgment pursuant to M.C.R. 6.500, et. seq.
The Court recognizes that pursuant to M.C.R. 6.502(G)(1), a criminal
defendant in Michigan can typically file only one post-conviction motion for
relief from judgment with regard to a criminal conviction. See Banks v.
Jackson, 149 F.App’x 414, 418 (6th Cir. 2005). The Court is also aware
that under M.C.R. 6.310(c), a defendant is required to file a motion to
withdraw the plea within six months after sentence. If a defendant wishes
to withdraw a guilty plea more than six months after being sentenced, he or
she may do so “only in accordance with the procedure set forth in
subchapter 6.500.” Petitioner’s appellate counsel filed petitioner’s motion
to withdraw her plea within the six month time limit under M.C.R. 6.310(c).
There is no indication from the evidentiary hearing transcripts, the trial
court’s final order, the prosecutor’s appellate court brief, or the Michigan
appellate courts’ orders that the motion to withdraw the plea was untimely
or re-characterized as a post-conviction motion for relief from judgment.
Petitioner therefore has a post-conviction remedy. Petitioner could
exhaust these claims by filing a post-conviction motion for relief from
judgment with the Saginaw County Circuit Court under Michigan Court
Rule 6.500, et. seq. See Wagner, 581 F.3d at 419. 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).
In addition, the mere fact that appellate counsel failed to brief the
issues contained in petitioner’s habeas application would not render
exhaustion futile, because petitioner still has available state court remedies
with which to exhaust these new claims. See Gray v. Wingo, 391 F.2d 268,
269 (6th Cir. 1967). In fact, to the extent that petitioner would want to
allege the ineffective assistance of appellate counsel claim, such a claim
has not yet been presented to the state courts. A claim of ineffective
assistance of appellate counsel is subject to the exhaustion requirement.
See Baldwin v. Reese, 541 U.S. 27, 30-33 (2004).
Petitioner’s habeas application is subject to dismissal because it
contains claims that have yet to be properly exhausted in the state courts.
This Court is concerned that the outright dismissal of the petition, albeit
without prejudice, might result in preclusion of consideration of the
petitioner's claims in this Court due to the expiration of the AEDPA’s one
year statute of limitations. See 28 U.S.C. § 2244(d)(1). 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 court may stay a
federal habeas petition and hold further proceedings in abeyance pending
resolution of state court post-conviction proceedings, if there is good cause
for failure to exhaust and the unexhausted claims are not “plainly
meritless.” Rhines v. Weber, 544 U.S. 269, 278 (2005).
Petitioner’s claims do not appear to be “plainly meritless.” Wagner,
581 F.3d at 419. Further, petitioner may assert that she did not previously
raise these claims in the state courts due to the ineffective assistance of
appellate counsel. Id., at 419, nn. 4 and 5.5 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 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. To ensure that petitioner does not delay in exhausting her
state court remedies, the Court imposes upon petitioner time limits within
which she must proceed. See Palmer v. Carlton, 276 F.3d 777, 781 (6th
Cir. 2002). Petitioner must present her claims in state court by filing a postconviction motion for relief from judgment with the state trial court within
sixty days from the date of this Order. See id. Further, she must ask this
Court to lift the stay within sixty days of exhausting her 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
State post-conviction review would be the first opportunity that petitioner would have under
Michigan law to raise any ineffective assistance of appellate counsel claim. See Guilmette v. Howes, 624
F.3d 286, 291 (6th Cir. 2010).
petition may be dismissed.” Palmer, 276 F.3d at 781 (internal quotation
It is ORDERED that petitioner may file a motion for relief from
judgment with the state court within sixty (60) 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 her petition without
If petitioner files a motion for relief from judgment, she (or her
attorney) 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 exhausted claims.
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.
Dated: May 30, 2017
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
May 30, 2017, by electronic and/or ordinary mail.
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?