Blount v. Winn

Filing 10

OPINION and ORDER DISMISSING PETITIONERS APPLICATION FOR AWRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS Signed by District Judge Bernard A. Friedman. (CMul)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK ANTHONY BLOUNT,
Petitioner,

Civil Action No. 16-CV-13044

vs.

HON. BERNARD A. FRIEDMAN

THOMAS WINN,
Respondent.
__________________________/
OPINION AND ORDER DISMISSING PETITIONER’S APPLICATION FOR A
WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner in this matter has filed an application for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. He challenges his convictions for involuntary manslaughter, operating a motor
vehicle without a license causing death, and being a fourth felony habitual offender. For the reasons
stated below, the Court shall dismiss the petition without prejudice.
I. Background
Petitioner was charged with second-degree murder, operating a motor vehicle without
a license causing death, and being a fourth felony habitual offender. He pled no contest to a reduced
charge of involuntary manslaughter, operating a motor vehicle without a license causing death, and
being a fourth habitual offender, in exchange for dismissal of the second-degree murder charge.
Petitioner was sentenced to life in prison as a fourth habitual offender on the involuntary
manslaughter conviction and ten to fifteen years on the operating a motor vehicle without a license
causing death conviction.
Petitioner filed an application for leave to appeal in the Michigan Court of Appeals,
raising the following claims:

I. Defendant’s state and federal constitutional rights were violated when he
was coerced into his plea because his attorney was not acting in his best
interests and his attorney was ineffective.
II. Defendant’s life sentence is disproportionate and constitutes cruel and
unusual punishment, US Const. VIII, Const. 1963, Art. § 16.
III. Mr. Blount is entitled to re-sentencing where the sentencing guidelines
were misscored in violation of the state and federal right to sentencing based
on accurate information and trial defense counsel was ineffective for not
challenging the scoring.
On September 24, 2014, the Michigan Court of Appeals issued a summary order
remanding petitioner’s case for re-sentencing. See People v. Blount, No. 322348 (Mich. Ct. App.
Sept. 24, 2014). Petitioner did not seek leave to appeal from the Michigan Court of Appeals’ order.1
Petitioner was re-sentenced on November 14, 2014. Petitioner then filed an application for leave
to appeal his new sentence, raising a single issue:
Defendant must be resentenced again because the trial court failed to state
objective and verifiable reasons in support of the guidelines departure and the
extent of the departure, which was a life sentence for which parole will likely
never be granted, in violation of US Const. Am. V, XIV; Const. 1963, Art.
§ 17.
Petitioner was denied leave to appeal by the Michigan Court of Appeals and the Michigan Supreme
Court. See People v. Blount, No. 327388 (Mich. Ct. App. June 23, 2015); lv. den. 499 Mich. 857
(2016).
Petitioner now seeks a writ of habeas corpus on the following grounds:
I. Defendant’s state and federal constitutional rights were violated when
he was coerced into his plea because his attorney was not acting in his best
interests and his attorney was ineffective.

See Aff. of Larry Royster, Clerk of the Michigan Supreme Court, dated October 18, 2016.
[This Court’s Dkt. # 8-16.]
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II. Defendant’s life sentence is disproportionate and constitutes cruel and
unusual punishment, US Const. VIII, Const. 1963, Art. § 16.
III. Mr. Blount is entitled to re-sentencing where the sentencing guidelines
were misscored in violation of the state and federal right to sentencing based
on accurate information and trial defense counsel was ineffective for not
challenging the scoring.
II. Discussion
Respondent has filed a motion to dismiss the petition on the ground that petitioner
failed to exhaust his claims with the state courts. The Court agrees that dismissal of the petitio is
required.
A state prisoner seeking federal habeas relief must first exhaust his available state
court remedies. See 28 U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U. S. 270, 275-78 (1971).
In order to exhaust a claim for federal habeas review, a petitioner must present each ground to both
state appellate courts, even 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)). 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.
Federal district courts must dismiss habeas petitions which contain unexhausted claims. See Pliler
v. Ford, 542 U.S. 225, 230 (2004).
In the present case, the petition must be dismissed because none of petitioner’s claims
have been properly exhausted with the state courts. Petitioner’s first claim that he was coerced into
pleading guilty and that counsel was ineffective with respect to his guilty plea was raised before the

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Michigan Court of Appeals on his initial appeal. Although the Michigan Court of Appeals ordered
that petitioner be re-sentenced, that court obviously denied relief with respect to petitioner’s claim
that his plea was coerced and his related ineffective assistance of counsel claim. Petitioner did not
seek leave to appeal with the Michigan Supreme Court from the Michigan Court of Appeals’ order.
Petitioner did not attempt to raise this claim again before the Michigan Supreme Court in his appeal
after his re-sentencing. Because petitioner failed to raise this claim before the Michigan Supreme
Court as part of the direct appeal process, the claim is unexhausted. See e.g. Rupert v. Berghuis, 619
F. Supp. 2d 363, 367 (W.D. Mich. 2008).
To the extent that petitioner’s second and third claims arise from his original
sentencing, those claims are now moot because petitioner was re-sentenced. See Hill v. Sheets, 409
F. App’x 821, 824-25 (6th Cir. 2010). To the extent that petitioner argues that his current sentence
is cruel and unusual, that his guidelines were misscored, or that counsel was ineffective at his resentencing, those claims were not raised before the Michigan appellate courts on re-sentencing. The
exhaustion requirement applies to any claims which may arise from a re-sentencing. See
Prendergast v. Clements, 699 F.3d 1182, 1184-85 (10th Cir. 2012).
On petitioner’s re-sentencing appeal, the only issue raised was a claim that the trial
judge did not have substantial or compelling reasons to depart above the sentencing guidelines
range. Petitioner did not raise a claim involving the scoring of the guidelines or counsel’s
ineffectiveness at the re-sentencing. Although petitioner’s appellate counsel briefly alluded to the
Eighth Amendment’s ban on cruel and unusual punishment in her appellate brief,2 a habeas
petitioner’s “sporadic and undeveloped allusions” to a claim do not satisfy the exhaustion
2

See Delayed Application for Leave to Appeal, p. 7 [This Court’s Dkt. # 8-17.]

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requirement. See Vasquez v. Jones, 496 F.3d 564, 568 (6th Cir. 2007). Indeed, petitioner made no
mention of any potential cruel and unusual punishment claim in the statement of questions in the
appellate brief. M.C.R. 7.212(C)(5) requires a statement of the questions involved, with each issue
for appeal separately numbered. See Dando v. Yukins, 461 F.3d 791, 797 (6th Cir. 2006). In his brief
before the Michigan Court of Appeals, petitioner merely argued that the trial court abused its
discretion in departing above the sentencing guidelines range without having substantial and
compelling reasons to do so. By failing to raise an Eighth Amendment claim in the headings in his
appeal brief, petitioner did not fairly present a cruel and unusual punishment claim to the state courts
for purposes of properly exhausting this claim. See Wagner, 581 F.3d at 415-16.
Under Hargrove v. Brigano, 300 F. 3d 717, 719-721 (6th Cir. 2002), the Court shall
dismiss the petition without prejudice and the one-year limitations period shall be tolled from
August 19, 2016, the date petitioner filed his petition, until petitioner returns to federal court.3 This
tolling of the limitations period is contingent upon petitioner complying with the conditions
indicated below.
III. Conclusion
For the reasons stated above,

IT IS ORDERED that petitioner’s application for a writ of habeas corpus is
dismissed without prejudice.

3

Under the prison mailbox rule, the Court assumes petitioner filed his habeas petition on August 19, 2016, the date
that it was signed and dated. See Towns v. U.S., 190 F.3d 468, 469 (6th Cir. 1999).

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IT IS FURTHER ORDERED that the one-year statute of limitations found
in 28 U.S.C. § 2244(d)(1) is tolled from August 19, 2016, the date that petitioner filed his habeas
application, until the time petitioner returns to this Court to pursue habeas corpus relief, provided
that petitioner files a new habeas petition in this Court within thirty days of the completion of his
state post-conviction proceedings.

IT IS FURTHER ORDERED that no certificate of appealability shall issue
because petitioner has not made a substantial showing of the denial of a constitutional right. 28
U.S.C. § 2253(c)(2).

IT IS FURTHER ORDERED that petitioner may not proceed on appeal in forma
pauperis because any appeal in this matter would be frivolous.

S/ Bernard A. Friedman______
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: May 25, 2017
Detroit, Michigan

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