Morris v. Klee

Filing 6

OPINION and ORDER Summarily Dismissing the 1 Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability or Leave to Appeal In Forma Pauperis. Signed by District Judge Denise Page Hood. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DALE LESTER MORRIS, # 187452,
Petitioner,
CIVIL NO. 2:16-CV-12531
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

v.
PAUL KLEE,

Respondent.
________________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR
WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA
PAUPERIS
Dale Lester Morris, (“Petitioner”), confined at the Gus Harrison
Correctional Facility in Adrian, Michigan, filed a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se,
petitioner challenges his conviction for two counts of bank robbery,
M.C.L.A. 750.531a. For the reasons stated below, the petition for writ of
habeas corpus is DISMISSED WITHOUT PREJUDICE.
I. Background
Petitioner was convicted of the above charges in the Washtenaw
County Circuit Court. On May 18, 2016, petitioner was sentenced to five

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years, eleven months to thirty years in prison. There is no indication that
petitioner ever appealed his conviction to the Michigan Court of Appeals or
to the Michigan Supreme Court. Petitioner now seeks a writ of habeas
corpus, in which he challenges the validity of the arrest warrant and
criminal complaint in his state criminal case.
II. Discussion
The instant petition must be dismissed without prejudice, because
petitioner has yet to exhaust his claims with the state courts.
A 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); Picard v. Connor, 404 U. S. 270, 275-78 (1971);
See also Foster v. Withrow, 159 F. Supp. 2d 629, 638 (E.D. Mich. 2001).
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). Therefore, 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. In order to exhaust a claim for federal habeas review, a
petitioner must present each ground to both state appellate courts, even

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where the state’s highest court provides only discretionary review. See
Regan v. Hoffner, 209 F. Supp. 2d 703, 710, n. 3 (E.D. Mich. 2002)(citing
O’Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999)). A federal district
court should generally dismiss a petition for writ of habeas corpus that
contains any unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 510,
522, (1982); Regan v. Hoffner, 209 F. Supp. 2d at 710, n. 3. 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
has failed to allege or indicate in his petition that he has exhausted his
state court remedies. 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 has filed a claim of appeal with the Washtenaw County

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Circuit Court and appellate counsel has been appointed to represent him.
No appeal has been filed yet, however, with the Michigan Court of Appeals
or the Michigan Supreme Court. 1 Because petitioner has not presented
his claims to the Michigan Court of Appeals or to the Michigan Supreme
Court, he has not exhausted his state court remedies. See Geeter v.
Bouchard, 293 F. Supp. 2d 773, 775 (E.D. Mich. 2003).
Petitioner has failed to exhaust his state court remedies with respect
to his claims and still has an available state court remedy with which to do
so. 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 present habeas petition was filed with this
Court before petitioner’s conviction became final with the state courts
pursuant to 28 U.S.C. § 2244(d)(1)(A). Because the one year limitations
period has yet to begin running in this case, petitioner would not be
1

The Court obtained this information from the Washtenaw County Circuit Court website,
http://tcweb.ewashtenaw.org/PublicAccess/CaseDetail.aspx?CaseID=354353;
http://tcweb.ewashtenaw.org/PublicAccess/CaseDetail.aspx?CaseID=354355; the Michigan Court of
Appeals’ website, http://courts.mi.gov/opinions/orders, and from Westlaw’s website, www.westlaw.com.
Public records and government documents, including those available from reliable sources on the Internet,
are subject to judicial notice. See United States ex. rel. Dingle v. BioPort Corp., 270 F. Supp. 2d 968, 972
(W.D. Mich. 2003). A federal district court is also permitted to take judicial notice of another court’s
website. See e.g. Graham v. Smith, 292 F. Supp. 2d 153, 155, n. 2 (D. Me. 2003).

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prejudiced if his habeas petition was dismissed without prejudice during the
pendency of his state court appeal. 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).
The Court will also deny a certificate of appealability. In order to
obtain a certificate of appealability, a prisoner must make 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 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

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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 district court must issue or deny a
certificate of appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. §
2254.
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 claim or claims. See
Colbert v. Tambi, 513 F. Supp. 2d 927, 939 (S.D. Ohio 2007). The Court
will also deny petitioner leave to appeal in forma pauperis, because the
appeal would be frivolous. Dell v. Straub, 194 F. Supp. 2d 629, 659 (E.D.
Mich. 2001).
III. ORDER
Accordingly, the Petition for Writ of Habeas Corpus is DISMISSED
WITHOUT PREJUDICE.

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The Court further DENIES a certificate of appealability and leave to
appeal in forma pauperis.

Dated: July 27, 2016

s/Denise Page Hood
HON. DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

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