Lyons v. Bergh

Filing 9

OPINION AND ORDER DENYING Respondent's Motion for Order Dismissing Application for Writ of Habeas Corpus 6 . Signed by District Judge Laurie J. Michelson. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ALEXANDER LYONS,
Petitioner,

Case Number: 15-CV-13097
Honorable Laurie J. Michelson

v.
DAVID BERGH,
Respondent.
/

OPINION AND ORDER DENYING RESPONDENT’S MOTION FOR ORDER
DISMISSING APPLICATION FOR WRIT OF HABEAS CORPUS [6]
Petitioner Alexander Lyons, a Michigan prisoner, was convicted of first-degree felony
murder and felony firearm in the shooting death of Johnathan Clements. He has filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent David Bergh has
filed a motion to dismiss the petition for failure to exhaust all claims. (R. 6.) The Court agrees
that the petition asserts both exhausted and unexhausted claims. But dismissal of the mixed
petition would jeopardize the timeliness of a future petition. The Court will therefore deny the
motion to dismiss and allow Petitioner to inform the Court how he wishes to proceed.
I. Background
Petitioner’s convictions arise from the shooting death of Johnathan Clements in Hazel
Park, Michigan. Petitioner set up a Craigslist ad to sell his cell phone. Clements made
arrangements to buy it from Petitioner. In a statement to police, Petitioner said that he and codefendant Lamar Deangelo Clemons intended to rob Clements rather than sell him a phone. (R.
1, PID 25.) After exchanging the cell phone for the money, Petitioner pulled out a gun and

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demanded that Clements return the phone. (Id.) Petitioner told police that Clements turned and
fidgeted, so Petitioner thought he might be reaching for a gun and shot him. (Id.) After Clements
turned again, Petitioner believed he might still be reaching for a gun, so Petitioner shot him
again. (Id.)
Following a joint trial with co-defendant Clemons, before separate juries, Petitioner was
convicted of first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b), and possession of a
firearm during the commission of a felony, Mich. Comp. Laws § 750.227b. On October 3, 2011,
Petitioner was sentenced to life imprisonment for the murder conviction, and two years’
imprisonment for the felony-firearm conviction. (See R. 7-11.)
Petitioner filed an appeal as of right in the Michigan Court of Appeals. He raised claims
that a police detective was improperly permitted to testify as to the truthfulness of certain
witnesses, counsel was ineffective for failing to object to the detective’s testimony, and
insufficient evidence was presented to satisfy the malice element of first-degree felony murder.
He raised two additional claims in a pro per supplemental brief: counsel was ineffective in not
challenging the probable cause determination, and counsel was ineffective in failing to ask for an
instruction on statutory involuntary manslaughter. The Michigan Court of Appeals affirmed
Petitioner’s convictions. People v. Lyons, No. 306462, 2013 WL 6921521 (Mich. Ct. App. Dec.
26, 2013).
Petitioner then filed an application for leave to appeal in the Michigan Supreme Court.
He raised the same claims raised in the Michigan Court of Appeals and these additional claims:
(i) appellate counsel was ineffective in failing to raise claims that trial counsel was so ineffective
as to result in the constructive denial of counsel, and that trial counsel was ineffective in failing
to object to a Confrontation Clause violation, and that the prosecutor engaged in misconduct; (ii)

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trial counsel was ineffective in failing to conduct a reasonable investigation, timely file pretrial
motions for discovery, secure production of certain witness names, subject the prosecution’s case
to meaningful adversarial testing, object to the admission of inadmissible evidence related to
internet data compilation and telephone records, and in failing to compel the production of the
prosecution’s nontestifying witnesses; and (iii) prosecutorial misconduct. The Michigan Supreme
Court denied leave to appeal because it was “not persuaded that the questions presented should
be reviewed by this Court.” People v. Lyons, No. 148785, 847 N.W.2d 509 (Mich. June 24,
2014). Petitioner did not petition the United States Supreme Court for certiorari, nor did he file a
state-court collateral appeal. (R. 1, PID 4.)
Petitioner filed the pending habeas corpus petition on August 26, 2015. He raises these
claims:
I.
Petitioner was denied his constitutional right to confront and cross-examine
Latasha Pettas, who did not appear at trial, when Detective Roettger was allowed to
testify to the substance of Pettas’s testimonial, out-of-court statement, offered into
evidence against petitioner for its truth, where there was no showing of Pettas’s
unavailability to appear at trial.
II.
The admission of incompetent and repeated testimony at trial from detective
Roettger opining and commenting on the credibility and ultimate guilt of Petitioner, as
well as the credibility of Joseph Browder and Latasha Pettas, was so egregious that it
violated Petitioner’s rights under the due process clause to a fundamentally fair trial
where the central issue at trial centered solely on the credibility of Petitioner, Pettas, and
Browder.
III.
Petitioner was denied his constitutional right to due process and a fair trial, when
the prosecutor improperly elicited an opinion about Petitioner’s credibility from the law
enforcement agent who interviewed him, and further sought testimony from that agent
that suggested the guilt of petitioner to the jury.
IV.
Petitioner was denied his constitutional right to the effective assistance of counsel
due to all of the following: (i) Trial counsel failed to object on Confrontation Clause
grounds to the admission of Pettas’s out-of-court statement introduced at trial through the
testimony of Detective Roettger. (ii) Trial counsel failed to object to the admission of
Detective Roettger’s opinion-testimony regarding the credibility of petitioner Lyons,

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Joseph Browder, and Latasha Pettas, as well as his opinion that suggested the guilt of
Petitioner to the jury. (iii) Trial counsel failed to object to prosecutor misconduct.
V.
Petitioner’s conviction for felony murder must be reversed where the prosecution
failed to present sufficient evidence of malice to satisfy the constitutional due process
standard of guilt beyond a reasonable doubt.
Respondent has filed a motion for dismissal of the petition on the ground that Petitioner
failed to exhaust his state court remedies. (R. 6.) Petitioner has not filed a response to the motion.
II. Discussion
A state prisoner seeking federal habeas corpus relief must first exhaust available state
court remedies in state court before raising a claim in federal court. 28 U.S.C. § 2254(b)–(c). To
exhaust state court remedies, a claim must be fairly presented “to every level of the state courts
in one full round.” Ambrose v. Romanowski, 621 F. App’x 808, 814 (6th Cir. 2015) (citation
omitted); see also Wagner v. Smith, 581 F.3d 410, 418 (6th Cir. 2009) (“For a claim to be
reviewable at the federal level, each claim must be presented at every stage of the state appellate
process.”). A claim is fairly presented “[o]nly where the petitioner presented both the factual and
legal basis for his claim to the state courts.” Ambrose, 621 F. App’x at 814 (internal quotation
marks and citation omitted). A petitioner bears the burden of showing that state court remedies
have been exhausted. Nali v. Phillips, 681 F.3d 837, 852 (6th Cir. 2012).
Respondent argues that Petitioner’s first, third, and portions of his fourth claim (regarding
his claims that counsel was ineffective for failing to object on Confrontation Clause grounds to
the admission of Pettas’s out-of-court statement and counsel was ineffective in failing to object
to prosecutorial misconduct, i.e., sub-parts (i) and (iii)) for habeas relief were not properly
exhausted in state court. Petitioner acknowledges that he presented these claims for the first time
in his application for leave to appeal in the Michigan Supreme Court. (R. 1, PID 33.) Yet raising
a new claim for the first time to a state’s highest court on discretionary review does not
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constitute fair presentation of the claim to the state courts. Skinner v. McLemore, 425 F. App’x
491, 494 (6th Cir. 2011) (citing Castille v. Peoples, 489 U.S. 346, 349 (1989)). These claims thus
are not properly exhausted. As such, the Petition is a “mixed” one.
“A federal district court, generally speaking, may not grant the writ on a ‘mixed’ petition,
one containing claims that the petitioner has pressed before the state courts and claims that he
has not.” Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009) (citing 28 U.S.C. § 2254(b)(1)(A)
and Rhines v. Weber, 544 U.S. 269, 273–74, 125 S.Ct. 1528 (2005)). When confronted with a
mixed petition, the Court can “do one of four things”:
(1) dismiss the mixed petition in its entirety, Rhines, 544 U.S. at 274, 125 S.Ct.
1528; (2) stay the petition and hold it in abeyance while the petitioner returns to
state court to raise his unexhausted claims, id. at 275, 125 S.Ct. 1528; (3) permit
the petitioner to dismiss the unexhausted claims and proceed with the exhausted
claims, id. at 278, 125 S.Ct. 1528; or (4) ignore the exhaustion requirement
altogether and deny the petition on the merits if none of the petitioner’s claims has
any merit, 28 U.S.C. § 2254(b)(2).
Harris, 553 F.3d at 1031–32 (emphasis in original).
Unless the Court hears otherwise from Petitioner (as discussed below), it will choose the
third option, and allow Petitioner to dismiss the unexhausted claims and proceed solely on the
exhausted claims that he raised to the Michigan Court of Appeals in his direct appeal.
The first option would be severe because of a lurking statute of limitations issue. The
one-year limitations period runs from “the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A). The Michigan Supreme Court denied Petitioner’s application for leave to
appeal on June 24, 2014. Petitioner’s convictions then became final ninety days later, on
September 22, 2014, when the time for filing a petition for a writ of certiorari in the United
States Supreme Court expired. The one-year limitations period commenced the following day,
September 23, 2014. See Bronaugh v. Ohio, 235 F.3d 280, 284–85 (6th Cir. 2000) (holding that
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the last day on which a petitioner can file a petition for a writ of certiorari in the United States
Supreme Court is not counted toward the one-year limitations period applicable to habeas corpus
petitions). Petitioner filed the pending petition on August 26, 2015, just four weeks before the
limitations period expired. As a result, dismissal without prejudice in order to allow Petitioner to
exhaust his state court remedies would likely foreclose future federal habeas review.
As for the second option, the Court sees no reason to stay the petition at this time so that
Petitioner can return to state-court to exhaust his unexhausted claims. First, Petitioner has not
asked for this relief. Additionally, a stay is only appropriate if there was good cause for the
petitioner’s failure to exhaust his claims first in state court, the claims are not “plainly meritless,”
and the petitioner did not engage in intentionally dilatory litigation tactics. Rhines, 544 U.S. at
277–78. Though Respondent mentioned the stay and abeyance procedure in his motion to
dismiss, Petitioner did not respond to the motion. Thus, the Court does not currently have a basis
to conclude that there was good cause for the failure to exhaust. And the Court is under no
obligation to address the stay and abeyance procedure sua sponte. See Robbins v. Carey, 481
F.3d 1143, 1149 (9th Cir. 2007). Nonetheless, the Court will allow Petitioner to submit a request
to stay the petition and hold it in abeyance so that he can pursue his unexhausted claims in statecourt. If Petitioner chooses that route, he should explain why there was good cause for his failure
to exhaust his claims, why his unexhausted claims are not plainly meritless, and why his delays
and failure to exhaust were not intentionally dilatory litigation tactics.
Finally, as for the fourth option, it would be premature to examine the claims on the
merits, as the parties have not fully briefed the merits of the claims.

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III. Conclusion
For the reasons set forth above, IT IS ORDERED that Respondent’s Motion for Order
Dismissing Petitioner’s Application for Writ of Habeas Corpus for Failure to Exhaust All Claims
(R. 6) is DENIED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Petitioner must inform the Court within 30 days of the
date of this order whether he wishes to (1) voluntarily dismiss his mixed petition, (2) have this
Court hold his petition in abeyance while he returns to state court to raise his unexhausted claims
there, or (3) dismiss his unexhausted claims and have the Court proceed with his exhausted
claims. Should Petitioner fail to inform the Court of his choice within 30 days, the Court will
proceed with the third option.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
U.S. DISTRICT JUDGE

Dated: March 10, 2017

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court=s ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on March 10, 2017.
s/Keisha Jackson
Case Manager

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