Marsh v. Harry

Filing 9

MEMORANDUM OPINION and ORDER Dismissing the 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 Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DEVONNE MARSH, #343384,
Petitioner,
CASE NO. 2:17-CV-10156
HONORABLE ARTHUR J. TARNOW

v.
SHIRLEE HARRY,
Respondent.
__________________________________/

OPINION AND ORDER DISMISSING 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

DeVonne Marsh (“Petitioner”) pleaded guilty to the attempted delivery or manufacture of
less than 50 grams of a controlled substance in the Wayne County Circuit Court and was
sentenced to one to five years imprisonment in 2014. In his pleadings, he raises claims
concerning his arrest without a warrant and the endorsement of the felony complaint, the
filing of a return on the information, the filing of a felony information, and the state
court’s jurisdiction. For the reasons stated, the Court 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.

Marsh v. Harry
Case No. 2:17-CV-10156

II.

Analysis
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254 must

first exhaust state court 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 the exhaustion
requirement, the claims must be “fairly presented” to the state courts, meaning that the
petitioner 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). Each issue must be presented 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). The burden is on the petitioner to prove exhaustion. Rust, 17
F.3d at 160.
Petitioner has not met his burden of demonstrating exhaustion of state court
remedies. In his pleadings, he indicates that he filed state habeas actions in the Marquette
County Circuit Court and the Michigan Court of Appeals, both of which were denied.
Petitioner, however, does not show that he pursued a direct appeal or a motion for relief
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Marsh v. Harry
Case No. 2:17-CV-10156

from judgment in the state courts. While Petitioner’s time for filing a direct appeal in the
state courts has likely expired, there is no time limit for filing a motion for relief from
judgment pursuant to Michigan Court Rule 6.500 et seq. Petitioner thus has an available
remedy in the Michigan courts which must be exhausted before proceeding in federal
court. He may raise his claims in a motion for relief from judgment pursuant to Michigan
Court Rule 6.500 before the state trial court and then pursue his claims in the state
appellate courts as necessary.
Federal 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). If the Court
were to review Petitioner’s unexhausted issues, such an action would deny the state courts
the deference to which they are entitled. The state courts must first be given a fair
opportunity to rule upon Petitioner’s claims before he litigates those claims in federal
court. Otherwise, the Court is unable to apply the standard found at 28 U.S.C. § 2254.
III.

Conclusion
For the reasons stated, the Court concludes that Petitioner has not exhausted

available state court remedies as to his habeas claims. Accordingly, the Court
DISMISSES WITHOUT PREJUDICE the petition for a writ of habeas corpus. The
Court makes no determination as to the merits or timeliness of the petition at this time.
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Marsh v. Harry
Case No. 2:17-CV-10156

Before 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 federal court dismisses
a habeas claim 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 any appeal cannot be taken in good faith. Fed. R. App. P. 24(a).
IT IS SO ORDERED.

S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: March 3, 2017
I hereby certify that a copy of the foregoing document was served upon parties/counsel of
record on March 3, 2017, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant

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