Howard v. Haas
Filing
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OPINION and ORDER Dismissing Petition for Writ of Habeas Corpus Without Prejudice and Denying Certificate of Appealability Signed by District Judge Victoria A. Roberts. (CPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BILLY HOWARD,
Case Number: 2:16-cv-13883
HON. VICTORIA A. ROBERTS
Petitioner,
v.
RANDALL HAAS,
Respondent.
/
OPINION AND ORDER
DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT
PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY
Petitioner Billy Howard filed a petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254. He is incarcerated at the Macomb Correctional Facility in New Haven,
Michigan. He challenges his convictions for three counts of assault with intent to commit
murder, felonious assault, discharging a firearm from a motor vehicle, felony firearm, and
felon in possession of a firearm. It is apparent from the face of the petition that Howard
has not exhausted his state court remedies. Howard argues that the state court’s
inordinate delay in adjudicating his direct appeal should excuse the exhaustion
requirement. The Court finds no inordinate delay in the state court’s processing of
Howard’s direct appeal and dismisses the petition without prejudice.
I.
Howard was convicted following a jury trial in Wayne County Circuit Court. On
February 18, 2014, he was sentenced to 16 to 30 years’ imprisonment for each assault
with intent to murder conviction, 1 to 4 years’ imprisonment for the felonious assault and
discharging a firearm from a motor vehicle convictions, 1 to 5 years’ imprisonment for
the felon in possession conviction, and 2 years’ imprisonment for the felony-firearm
conviction.
Howard filed an appeal of right in the Michigan Court of Appeals, which was
docketed on March 5, 2014. On May 28, 2015, the Michigan Court of Appeals remanded
the matter to the trial court for an evidentiary hearing on Howard’s ineffective assistance
of counsel claim. People v. Howard, No. 320695 (Mich. Ct. App. May 28, 2015). A
review of the trial court and Michigan Court of Appeals’ dockets shows that the Ginther
hearing took place on at least part of eight separate days spanning from September 25,
2015 through April 2016. The trial court apparently found no misconduct and the matter
was returned to the Michigan Court of Appeals on September 21, 2016. It appears that
the parties are in the process of filing supplemental briefs in the Michigan Court of
Appeals.
II.
A.
Upon the filing of a habeas corpus petition, the court must promptly examine the
petition to determine “if it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief.” Rule 4, Rules Governing Section
2254 cases. If the court determines that the petitioner is not entitled to relief, the court
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shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994)
(“Federal courts are authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face”). The habeas petition does not present grounds which
may establish the violation of a federal constitutional right. The petition will be
dismissed.
B.
Before a federal habeas court may grant relief, a state prisoner must exhaust
available remedies in the state courts. Castille v. Peoples, 489 U.S. 346, 349 (1989). If a
habeas petitioner has the right under state law to raise a claim by any available procedure,
the prisoner has not exhausted that claim. 28 U.S.C. § 2254(b), (c). A constitutional
claim for relief must be presented to the state’s highest court in order to satisfy the
exhaustion requirement. O’Sullivan v. Boerckel, 526 U.S. 838, 844 (1999). A habeas
petitioner bears the burden to demonstrate that the available state court remedies have
been properly and fully exhausted. Prather v. Rees, 822 F.2d 1418, 1420 n. 3 (6th Cir.
1987).
The exhaustion requirement may be excused where “circumstances exist that
render [the State corrective] process ineffective to protect the rights of the applicant.” 28
U.S.C. § 2254(b)(1)(B)(ii). “Inordinate delay in adjudicating state court claims” may
qualify as a circumstance excusing exhaustion “especially where ... the state clearly is
responsible for the delay.” Workman v. Tate, 957 F.2d 1339, 1344 (6th Cir. 1992). A
habeas petitioner who makes “frequent but unavailing requests to have his appeal
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processed” in the state courts should not be “not required to take further futile steps in
state court in order to be heard in federal court.” See Turner v. Bagley, 401 F.3d 718, 726
(6th Cir. 2005).
Howard fails to show that there has been an inordinate delay in processing his state
court appeal. In Workman, the Sixth Circuit excused a habeas petitioner’s failure to
exhaust his state post-conviction remedies where the petitioner’s motion for
post-conviction relief “languished” in the state courts for more than three years without
the state court making a decision. Workman, 957 F.2d at 1344. In contrast, while
Howard’s direct appeal was filed well over two years ago, it has not been languishing.
The record shows the appeal has been actively litigated since its filing. After the
Michigan Court of Appeals remanded for an evidentiary hearing, the trial court held that
hearing over the course of eight days; numerous briefs and replies were filed; several
enlargements of time were granted (at least two of which were requested by Howard).
While the process in state court has been lengthy, the record clearly reflects that the state
corrective process is robustly engaged. It would be impractical and unseemly for this
Court to adjudicate a habeas corpus petition while Howard’s direct appeal remains
pending.
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The habeas corpus petition is DISMISSED WITHOUT PREJUDICE.
SO ORDERED.
S/Victoria A. Roberts
VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE
Dated:
December 9, 2016
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