Van-Y v. Bush

Filing 8

OPINION and ORDER dismissing 1 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 George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID CHARLES VAN-Y, #455232,
Petitioner,
v.

CASE NO. 2:15-CV-12937
HON. GEORGE CARAM STEEH

JEREMY BUSH,
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
This is a habeas case brought by a Michigan prisoner pursuant to 28 U.S.C. § 2254.

David Charles Van-y (“petitioner”) pleaded nolo contendere in the Isabella County Circuit
Court to false pretenses with intent to defraud in excess of $1,000.00 but less than
$20,000.00, MICH. COMP. LAWS § 750.218(4)(a), and to larceny by conversion in excess of
$20,000.00, MICH. COMP. LAWS § 750.362(2)(a). On June 22, 2015, he was sentenced as
third habitual offender, MICH. COMP. LAWS § 769.11, to 2 to 10 years imprisonment on the
false pretenses conviction and to 2 to 20 years imprisonment on the larceny conviction.
See Offender Profile, Michigan Offender Tracking Information System (“OTIS”),
http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=455232.
The petitioner dated the instant petition on July 17, 2015 and filed it with the United
States District Court for the Western District of Michigan, which transferred the case to this

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Court on August 18, 2015. In his pleadings, the petitioner raises claims concerning his
plea bargain and the validity of his sentence. The petitioner does not indicate whether he
is pursuing a direct appeal or collateral review in the state courts. For the reasons stated,
the Court dismisses without prejudice the habeas petition. 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 fails to allege or establish that he has exhausted his
habeas claims in the Michigan courts before proceeding in federal court on habeas review
– and the record indicates that he would not have had time to do so. 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 delayed application for leave to
appeal with the Michigan Court of Appeals under Michigan Court Rule 7.205 and then seek
leave to appeal with the Michigan Supreme Court under Michigan Court Rule 7.302, or 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 assert
that his circumstances justify a stay. Second, it appears that all of his habeas claims are
unexhausted. The Court cannot stay a petition containing all unexhausted claims. In such
a case, a non-prejudicial dismissal of the petition is appropriate.
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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, 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 June
22, 2015. He is still within the period for pursuing a direct appeal of his convictions and
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sentences in the state courts. Once his direct appeals end or the time for seeking such
review expires, he will have the full one-year period to seek federal habeas relief. 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 one-year period will also be tolled for any time the petitioner
spends seeking collateral review in the state courts. See 28 U.S.C. § 2244(d)(2) (“properly
filed applications for State post-conviction or other collateral review...shall not be counted
toward any period of limitation”). The petitioner thus has sufficient time to file a new
habeas case upon the completion of state court remedies. Additionally, 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 non-prejudicial 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

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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 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: September 1, 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
September 1, 2015, by electronic and/or ordinary mail and
also on David Van-Y #455232, Kinross Correctional Facility,
16770 S. Watertower Drive, Kincheloe, MI 49788.
s/Barbara Radke
Deputy Clerk

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