Sands v. Klee

Filing 5

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 Stephen J. Murphy, III. (CCoh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY SANDS,
Petitioner,
Case No. 2:16-cv-13128
v.

HONORABLE STEPHEN J. MURPHY, III

PAUL KLEE,
Respondent.
/
OPINION AND ORDER DISMISSING
THE PETITION FOR A WRIT OF HABEAS CORPUS
(document no. 1), DENYING A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Michigan prisoner Gregory Lamar Sands ("Sands") has filed a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging a state criminal probationary
sentence. Pet., ECF No. 1.
BACKGROUND
Sands was convicted of fourth-degree criminal sexual conduct (force or coercion),
Mich. Comp. Laws § 750.520e(1)(a), pursuant to a plea in the Wayne County Circuit Court
in 2014. See Offender Profile, Michigan Offender Tracking Information System ("OTIS"),
http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=204581.

He

was

sentenced to a probationary term. Id. Additionally, Sands has been convicted of several
other felonies in the state courts and is currently serving sentences of 5 to 10 years
imprisonment for assault with intent to rob while armed, and 2 ½ to 20 years imprisonment
for first-degree home invasion. Id.
In his petition, Sands asserts that earlier this year the state court improperly

increased his probationary sentence from two years to four years in violation of his rights.
ECF No. 1. He asks the Court to vacate his probationary sentence or to deem it completed.
Id. For the reasons stated, the Court dismisses without prejudice Sands's petition for a writ
of habeas corpus. The Court also denies a certificate of appealability and denies leave to
proceed in forma pauperis on appeal.
STANDARD OF REVIEW
A state prisoner filing a federal habeas petition 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 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). 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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DISCUSSION
The record before the Court indicates that Sands has not fully exhausted his habeas
claims in the state courts before seeking federal habeas review. Although Sands alleges that
he has exhausted all available state remedies, he fails to support that allegation. Moreover,
the Court’s review of state-court records reveals that Sands filed a motion for relief from
judgment with the state trial court and was denied relief on June 9, 2016. See People v.
Sands, Wayne Co. Cir. Ct. Register of Actions, Case No. 14-001279-01-FH. There is no
indication that he has appealed that decision to the Michigan Court of Appeals or the
Michigan Supreme Court (or that they have ruled on any such cases). Sands thus fails to
show that he has properly exhausted his habeas claims in the state courts before seeking
review in federal court.
Sands 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, see Mich. Ct. R.
7.205(G)(3) (providing six-month time frame for filing a late application for leave to appeal),
and then seek leave to appeal with the Michigan Supreme Court. If he is barred from such
an appeal, he may also file a complaint for a writ of habeas corpus in the appropriate state
circuit court. See Mich. Comp. Laws § 600.4301 et seq., Mich. Ct. R. 3.303; Ryan v.
Department of Corr., 259 Mich. App. 26, 29 (2003) (prisoner brought habeas complaint
alleging that he was being held beyond legal limit of combined, consecutive sentences);
Triplett v. Deputy Warden, 142 Mich. App. 774, 779 (1985) (habeas complaint can be used
to review parole revocation decision); Cross v. Department of Corr., 103 Mich. App. 409,
414–15 (1981) (prisoner allowed to proceed on habeas complaint alleging that he had
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served full prison term) (overruled in part on other grounds); see also Caley v. Hudson, 759
F. Supp. 378, 380–81 (E.D. Mich. 1991).
Although the denial of such a writ is not appealable by right, the petition may be
renewed by filing an original habeas complaint with the Michigan Court of Appeals. Triplett,
142 Mich. App. at 779-80. Denial of such a complaint by the Michigan Court of Appeals is
subject to review by the Michigan Supreme Court. See Mich. Ct. R. 7.301. There is no time
limit for filing a state habeas complaint as long as the prisoner is in custody when the
judgment becomes effective. Triplett, 142 Mich. App. at 779.
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 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:”
when the one-year statute of limitations applicable to federal habeas actions poses a
concern, 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, Sands does not request a stay nor assert that his
circumstances justify a stay. See ECF No. 1. Second, the record indicates that all of his
habeas claims are unexhausted and the Court cannot stay a habeas petition containing all
unexhausted claims. In such a case, a non-prejudicial dismissal of the petition is
appropriate. 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) (“a stay of
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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 petition
containing only unexhausted claims); United States v. Hickman, 191 F. App’x 756, 757 (10th
Cir. 2006) (same); McDonald v. Bell, No. 1:06–cv–406, 2009 WL 1525970 (W.D. Mich. June
1, 2009) (same).
CONCLUSION
For the reasons stated, the Court concludes that Sands fails to show that he properly
exhausted his habeas claims in the state courts before filing this action, that he must do so
before proceeding on federal habeas review, and that a stay is unwarranted. Accordingly,
the Court will dismiss without prejudice the petition for a writ of habeas corpus. The Court
makes no determination as to the merits of Sands’s claims.
Before Sands may appeal this decision, a certificate of appealability must issue. See
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, 483–84 (2000).
Reasonable jurists could not debate the correctness of the Court’s procedural ruling.

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Accordingly, the Court will deny a certificate of appealability. The Court also will deny leave
to proceed in forma pauperis on appeal, as an appeal cannot be taken in good faith. Fed.
R. App. P. 24(a).
ORDER
WHEREFORE, it is hereby ORDERED that Sand's Petition for Writ of Habeas Corpus
(document no. 1) is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Petitioner is DENIED leave to proceed in forma
pauperis.
SO ORDERED.

s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: September 16, 2016

I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on September 16, 2016, by electronic and/or ordinary mail.
s/Carol Cohron
Case Manager

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