Gilmore v. Burton

Filing 13

OPINION and ORDER denying 11 petitioner's second MOTION to Stay proceedings and hold habeas petition in abeyance, dismissing without prejudice 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 George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOSEPH LEE GILMORE, #658733,
Petitioner,
v.

CASE NO. 16-CV-14512
HON. GEORGE CARAM STEEH

DEWAYNE BURTON,
Respondent.
___________________________/
OPINION AND ORDER DENYING THE PETITIONER’S
SECOND MOTION TO STAY PROCEEDINGS AND HOLD
HABEAS PETITION IN ABEYANCE, DISMISSING WITHOUT
PREJUDICE THE PETITION FOR A WRIT OF HABEAS CORPUS,
DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING
LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan

prisoner Joseph Lee Gilmore (“petitioner”) asserts that he is being held in
violation of his constitutional rights. The petitioner was convicted of two
counts of armed robbery, MICH. COMP. LAWS § 750.529, first-degree home
invasion, MICH. COMP. LAWS § 750.110a(2), three counts of unlawful
imprisonment, MICH. COMP. LAWS § 750.349b, felon in possession of a firearm,
MICH. COMP. LAWS § 750.224f, and possession of a firearm during the

commission of a felony (felony firearm), second offense, MICH. COMP. LAWS
§ 750.227b, following a jury trial in the Wayne County Circuit Court. He was
sentenced, as a fourth habitual offender, MICH. COMP. LAWS § 769.12, to
concurrent terms of 22 ½ years to 62 ½ years imprisonment on the armed
robbery convictions, a concurrent term of 9 years 2 months to 20 years
imprisonment on the home invasion conviction, concurrent terms of 5 years
10 months to 15 years imprisonment on the unlawful imprisonment
convictions, a concurrent term of 2 ½ to 5 years imprisonment on the felon in
possession conviction, and a consecutive term of five years imprisonment on
the felony firearm conviction in 2013. In his current petition, he raises claims
concerning the denial of an adjournment request, the effectiveness of trial and
appellate counsel, and the conduct of the prosecutor. The respondent has not
yet filed an answer to the habeas petition, but that answer is due on July 10,
2017.
The matter is before the Court on the petitioner’s second motion to stay
the proceedings and hold his habeas petition in abeyance so that he may
exhaust additional issues concerning the effectiveness of trial and appellate
counsel in the state courts. The Court denied the petitioner’s first stay and
abeyance motion finding that his current habeas claims were exhausted, that

-2-

the one-year statute of limitations did not pose a concern because three
months of the one-year period remained, and that he had not shown good
cause for failing to exhaust his new issues in the state courts before
proceeding on habeas review in federal court. In his second motion, the
petitioner states that he has now submitted a motion for relief from judgment
with the state trial court raising his additional ineffective assistance of trial and
appellate counsel claims and again requests that the Court stay the
proceedings and hold his petition in abeyance. For the set forth herein, the
Court denies the stay and abeyance request and instead dismisses without
prejudice the 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.
II.

Analysis
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C.

§2254 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 fair
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

-3-

“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) (citing McMeans). 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). A Michigan prisoner
must properly present each issue he seeks to raise in a federal habeas
proceeding to both 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 petitioner must exhaust all 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.
In this case, the petitioner has exhausted his current habeas claims on
direct appeal in the state courts, but he now informs the Court that he has
additional, potential habeas claims pending on collateral review in the state
trial court. He further indicates that he intends to pursue appellate review of

-4-

those claims in the state courts as necessary. The petitioner again seeks a
stay and abeyance of his federal habeas case. Such action is unwarranted
under the circumstances of this case.
First, it is inappropriate for the petitioner to challenge the same criminal
convictions and sentences in state court and federal court at the same time.
The petitioner must complete the state court process on his pending claims
before seeking habeas relief in federal court.

Witzke v. Bell, No.

07-CV-15315, 2007 WL 4557674 (E.D. Mich. Dec. 20, 2007); Harris v.
Prelisnik, No. 06-CV-15472, 2006 WL 3759945 (E.D. Mich. Dec. 20, 2006).
Federal habeas law provides that a habeas petitioner is only entitled to relief
if he can show that the state court adjudication of his claims resulted in a
decision that was contrary to, or involved an unreasonable application of,
clearly established federal law as determined by the Supreme Court of the
United States. 28 U.S.C. § 2254(d). The state courts must first be given a fair
opportunity to rule upon all of the petitioner’s claims before he can present
them in federal court. Otherwise, the Court cannot apply the standard found
at 28 U.S.C. § 2254.
While the petitioner’s pending state court motion for relief from judgment
does not appear to concern his current, exhausted habeas claims, that

-5-

proceeding may result in the reversal of his convictions on another ground,
thereby mooting the federal questions presented. See Humphrey v. Scutt,
No. 08-CV-14605, 2008 WL 4858091, *1 (E.D. Mich. Nov. 5, 2008) (citing
Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir.1983), and Woods v.
Gilmore, 26 F. Supp. 2d 1093, 1095 (C.D. Ill. 1998)); Szymanski v. Martin,
99-CV-76196-DT, 2000 WL 654916 (E.D. Mich. April 13, 2000). A nonprejudicial dismissal of the petition, rather than a stay of the proceedings, is
ordinarily warranted under such circumstances.
Moreover, as explained in the Court’s opinion denying the petitioner’s
first stay and abeyance motion, a stay is unnecessary in this case. A federal
district court has discretion to stay a mixed habeas petition, containing both
exhausted and unexhausted claims, to allow a petitioner to present
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" such as when the
one-year statute of limitations poses a concern, and when the petitioner
demonstrates "good cause" for the failure to exhaust state remedies before
proceeding in federal court, the petitioner has not engaged in intentionally
dilatory litigation tactics, and the unexhausted claims are not "plainly

-6-

meritless." Id. at 277. In Rhines, the Court adopted the stay and abeyance
procedure to specifically address the situation when outright dismissal of a
habeas petition could jeopardize the timeliness of a future petition following
the exhaustion of state

remedies.

Id. at 275 (noting that if the court

dismissed the habeas petition “close to the end of the 1-year period, the
petitioner’s chances of exhausting his claims in state court and refiling in
federal court before the limitation period [expired would be] slim”). Thus, stay
and abeyance is generally reserved for those cases where the AEDPA’s oneyear limitations period is likely to expire before a habeas petitioner can return
to state court to exhaust additional claims and then return to federal court on
an amended petition. See Moss v. Hofbauer, No. 07-10687, 2007 WL
317968, *2-3 (E.D. Mich. Oct. 16, 2007).
The petitioner fails to show the need for a stay. His current habeas
claims are exhausted and he has not shown that the one-year statute of
limitations applicable to federal habeas actions, see 28 U.S.C. § 2244(d), will
preclude review. The one-year limitations period does not begin to run until
90 days after the conclusion of direct appeal, see Jimenez v. Quarterman, 555
U.S. 113, 120 (2009) (stating that a conviction becomes final when “the time
for filing a certiorari petition expires”); Lawrence v. Florida, 549 U.S. 327, 333

-7-

(2007). The Michigan Supreme Court denied leave to appeal on December
23, 2015 and the time for seeking a writ of certiorari with the United States
Supreme Court expired on March 22, 2016. The petitioner submitted his
federal habeas petition to prison officials for mailing on December 21, 2016.
Thus, only nine months of the one-year period had expired when the petitioner
instituted this action. While the time in which this case has been pending in
federal court is not statutorily tolled, see Duncan v. Walker, 533 U.S. 167,
181-82 (2001) (a federal habeas petition is not an “application for State postconviction or other collateral review” within the meaning of 28 U.S.C. §
2244(d)(2) so as to statutorily toll the limitations period), such time is equitably
tolled. See, e.g., Johnson v. Warren, 344 F. Supp. 2d 1081, 1088-89 (E.D.
Mich. 2004). The limitations period will also be tolled during the time in which
any properly filed post-conviction or collateral actions are pending in the state
courts. See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-221
(2002). Given that three months of the one-year period remains, the petitioner
has sufficient time to exhaust his additional issues in the state courts and
return to federal court should he wish to do so.
Additionally, while there is no evidence of intentional delay and the
petitioner’s new claims do not appear to be plainly meritless, the petitioner has

-8-

not shown good cause for failing to exhaust his additional issues in the state
courts before seeking federal habeas review. The fact that appellate counsel
did not raise the issues on direct appeal, while perhaps establishing cause for
that procedural default, does not excuse the petitioner’s failure to exhaust all
of his issues on state collateral review before proceeding in federal court on
habeas review. The lack of a legal education, ignorance of the law, and/or the
lack of legal assistance do not constitute good cause for the failure to exhaust
state remedies. See Allen v. Yukins, 366 F.3d 396, 403 (6th Cir. 2004); Kint
v. Burt, No. 2:05-CV-74822-DT, 2007 WL 763174, *2 n.1 (E.D. Mich. March
9, 2007). Given such circumstances, a stay is unwarranted and a nonprejudicial dismissal is appropriate.
III.

Conclusion
For the reasons stated, the Court concludes that the petitioner has a

matter pending in the state courts concerning the convictions and sentences
at issue in this case and that a stay is unwarranted. Accordingly, the Court
DENIES the petitioner’s motion to stay the proceedings and hold the petition
in abeyance and DISMISSES WITHOUT PREJUDICE the petition for a writ
of habeas corpus. The Court makes no determination as to the merits of the
petitioner’s claims.

-9-

Before the petitioner may appeal the Court’s decision, a certificate of
appealability must issue. 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 court denies relief on procedural grounds without
addressing the merits, 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, 484-85 (2000). Reasonable jurists could not
debate the correctness of the Court’s procedural ruling. Accordingly, the
Court DENIES a certificate of appealability. The Court also DENIES leave to
proceed in forma pauperis on appeal as an appeal cannot be taken in good
faith. FED. R. APP. P. 24(a). This case is closed.
IT IS SO ORDERED.
Dated: May 15, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

-10-

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 15, 2017, by electronic and/or ordinary mail and also on
Joseph Gilmore #658733, Earnest C. Brooks Correctional
Facility, 2500 S. Sheridan Drive, Muskegon Heights,
MI 49444.
s/Barbara Radke
Deputy Clerk

-11-