Dewey v. Horton

Filing 3

OPINION and ORDER Summarily Dismissing 1 Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability and Leave to Appeal in Forma Pauperis. Signed by District Judge Stephen J. Murphy, III. (DPar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEREMIAH ALLEN DEWEY,
Petitioner,

Case No. 2:17-cv-10694

v.

HONORABLE STEPHEN J, MURPHY, III

CONNIE HORTON,
Respondent.
______________________________________/
OPINION AND ORDER SUMMARILY DISMISSING
THE PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA
PAUPERIS
Jeremiah Allen Dewey is confined at the Chippewa Correctional Facility in
Kincheloe, Michigan and seeks the issuance of a writ of habeas corpus pursuant to 28
U.S.C. § 2254. In his pro se application, Dewey challenges his conviction and sentence for
five counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b. For the
reasons stated below, the application for a writ of habeas corpus will be summarily
dismissed without prejudice.
BACKGROUND
Dewey was convicted following a jury trial in the Presque Isle County Circuit Court
that involved two consolidated cases. He was sentenced to concurrent terms of 13 to 25
years in prison in one case, and 22 to 40 years in the other. The Michigan Court of Appeals
remanded the case for re-sentencing, People v. Dewey, No. 324275, 2016 WL 620147
(Mich. Ct. App. Feb. 16, 2016), lv. den. 500 Mich. 855 (2016), and on October 3, 2016,
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Dewey was re-sentenced to the same term of 22 to 40 years in prison. The Michigan
Supreme Court declined to reopen his old appeal. Dewey also filed a state petition for a writ
of habeas corpus in the Montcalm County Circuit Court during the pendency of his appeal
of right, but the petition was denied.
Dewey now seeks a writ of habeas corpus on the following grounds:
I. U.S. Constitutional rights violations of Due Process, Fair Trial, Confront
Witness, Obtain Witness.
II. Ineffective Assistance of Counsel by court appointed attorney Daniel
Martin, retained attorney Patrick Crowley, Jacob Sartz, and court appointed
appeal attorney Daniel Rust.
III. Lies and Perjury were allowed to be made by MDHHS CPS worker
Brooke Dell and MDHHS Fostercare worker Danielle Myers about this case
violating Hardwick v. Vreeken 9th District Court.
IV. Conspiracy to interfere with civil rights.
DISCUSSION
The petition is subject to dismissal because none of Dewey's claims have been
properly exhausted with the state courts. As a general rule, a state prisoner seeking federal
habeas relief must first exhaust his available state court remedies before raising a claim
in federal court. 28 U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U.S. 270, 275–78
(1971). The Antiterrorism and Effective Death Penalty Act (AEDPA) preserves the
traditional exhaustion requirement, which mandates dismissal of a habeas petition
containing claims that a petitioner has a right to raise in the state courts but has not. See
Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999). Accordingly, a prisoner
confined pursuant to a Michigan conviction must raise each habeas issue in both the
Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal
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habeas corpus relief. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002). The
petitioner has the burden of proving that he has exhausted his state court remedies, Sitto
v. Bock, 207 F. Supp. 2d 668, 675 (E.D. Mich. 2002), and the failure to exhaust state court
remedies may be raised sua sponte by a federal court, see Benoit v. Bock, 237 F. Supp.
2d 804, 806 (E.D. Mich. 2003); see also 28 U.S.C. § 2254(b)(3) (requiring a state's waiver
of the exhaustion requirement to be expressly made through counsel).
At the outset, Dewey's motion before the Michigan Supreme Court to reopen his
appeal was untimely. Dewey claims that he attempted to present his four instant claims to
that court, but it sent him a letter on November 7, 2016 informing him that it considered the
case closed. See Application, ECF 1, PgID 4. The Michigan Supreme Court denied
Dewey's original application for leave to appeal on September 6, 2016. Under Michigan
Court Rule 7.311(F), Dewey then had 21 days to file a motion for rehearing. He did not file
his application to reopen the appeal until October 30, 2016 — well after the 21-day period
expired.
Moreover, the Michigan Supreme Court was precluded from considering the issues
Dewey raised in the motion to reopen. When an appellant fails to appeal an issue to the
Michigan Court of Appeals, the issue is considered waived before the Michigan Supreme
Court. Lawrence v. Will Darrah & Assocs., Inc., 445 Mich. 1, 4 n.2 (1994). By Dewey's own
admission, he did not raise any of his claims in his appeal brief before the Michigan Court
of Appeals, and a review of the appeal brief confirms the absence of the claims. See
Appellant's Br. on Appeal, ECF 1-2, PgID 213–54.
Dewey has therefore failed to meet the exhaustion requirement. Raising a claim for
the first time before the state courts on discretionary review does not amount to a "fair
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presentation" of the claim to the state courts for exhaustion purposes. See Castille v.
Peoples, 489 U.S. 346, 351 (1989). Because Dewey failed to present his claims on his
appeal of right with the Michigan Court of Appeals, his subsequent attempt to present those
claims to the Michigan Supreme Court does not satisfy the exhaustion requirement for
habeas purposes. See Skinner v. McLemore, 425 F. App'x 491, 494 (6th Cir. 2011); Farley
v. Lafler, 193 F. App'x 543, 549 (6th Cir. 2006).
Although Dewey argues that he raised the first two of his present claims in his state
petition for writ of habeas corpus in the Montcalm County Circuit Court, this does not satisfy
the exhaustion requirement. Under Michigan law, an action for writ of habeas corpus may
not be brought by or on behalf of persons "convicted, or in execution, upon legal process,
civil or criminal." Mich. Comp. Laws § 600.4310(3). That statutory prohibition is consistent
with Michigan's rule that habeas corpus cannot serve as a substitute for an appeal and
cannot be used to review the merits of a criminal conviction. Cross v. Dep't of Corr., 103
Mich. App. 409, 414–15 (1981) (citing People v. Price, 23 Mich. App. 663, 669 (1970)). A
writ of habeas corpus in Michigan deals only with radical defects which render a judgment
or proceeding absolutely void. Triplett v. Deputy Warden, 142 Mich. App. 774, 780 (1985)
(citing In Re Stone, 295 Mich. 207 (1940)). "A judgment which is merely erroneous, rather
than void, is subject to [appellate] review and may not be collaterally attacked in a habeas
corpus proceeding." Id. at 780–81. The policy of limiting habeas proceedings in Michigan
is "premised on the concern that such an action may be abused and substituted for normal
appellate proceedings." Walls v. Dir. of Institutional Servs. Maxie Boy's Training Sch., 84
Mich. App. 355, 357 (1978).
Dewey likewise failed to raise his third and fourth claims, but he appears to argue
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that the exhaustion requirement should be excused because appellate counsel was
ineffective for failing to raise these claims on his appeal of right. An exception to the
exhaustion requirement exists only if there is no opportunity to obtain relief in the state
courts or if the corrective process is so clearly deficient as to render futile any effort to
obtain relief in the state courts. Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Sitto v. Bock,
207 F. Supp. 2d 668, 676 (E.D. Mich. 2002). But a habeas petitioner has the burden to
show that all available state court remedies have been exhausted or that exceptional
circumstances exist which would make exhaustion unnecessary. Doty v. Lund, 78 F. Supp.
2d 898, 901 (N.D. Iowa 1999).
Dewey has not carried his burden. The mere fact that appellate counsel may have
been ineffective in failing to raise Dewey's claims on his appeal of right would not render
exhaustion futile, because Dewey still has available state court remedies with which to
exhaust his claims. Moreover, if Dewey is also seeking habeas relief based on appellate
counsel's failure to raise his other claims on his appeal of right, such a claim of ineffective
assistance of appellate counsel is itself subject to the exhaustion requirement. See Baldwin
v. Reese, 541 U.S. 27, 30–33 (2004).
The exhaustion doctrine, in the context of habeas cases, turns on whether there are
available state court procedures for a habeas petitioner to exhaust his claims, see Adams
v. Holland, 330 F.3d 398, 401 (6th Cir. 2003), and Dewey has an available state court
remedy with which to exhaust his claims. Under Subchapter 6.500 of the Michigan Court
Rules, Dewey can file a post-conviction motion for relief from judgment with the Presque
Isle County Circuit Court. See Wagner v. Smith, 581 F. 3d 410, 419 (6th Cir. 2009). A
denial of that motion would be reviewable by the Michigan Court of Appeals and the
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Michigan Supreme Court. See Mich. Ct. R. 6.509, 7.203, 7.302. Dewey must have
appealed any denial of a post-conviction motion to the Michigan Court of Appeals and the
Michigan Supreme Court to properly exhaust any claims that he would raise in the motion.
See, e.g., Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002). Dewey has not filed
a motion and has therefore failed to exhaust his state court remedies.
A district court has the discretion to stay a mixed habeas petition containing both
exhausted and unexhausted claims to allow the petitioner to present his unexhausted
claims to the state court in the first instance. See Rhines v. Weber, 544 U.S. 269, 278
(2005). But here, a stay of Dewey's application for a writ of habeas corpus would be
inappropriate, because all of his claims are unexhausted, and thus the Court lacks
jurisdiction over the petition while he pursues his claims in state court. See Raspberry v.
Garcia, 448 F.3d 1150, 1154 (9th Cir. 2006) (declining to extend the stay and abeyance
procedure enunciated in Rhines when the habeas petition contains only unexhausted
claims); see also Wilson v. Warren, No. 06-CV-15508, 2007 WL 37756, at * 2 (E.D. Mich.
Jan. 4, 2007) (same).
There are no exceptional or unusual circumstances present that would justify holding
Dewey's petition in abeyance, rather than dismissing it without prejudice, pending his return
to the state courts to exhaust his claims. The Michigan Court of Appeals remanded
Dewey's case for re-sentencing. Dewey was re-sentenced on October 3, 2016. Michigan
courts have held that a defendant who has already taken an appeal of right from the
judgment of conviction can also take a second appeal of right from an order of resentencing following a remand from the Michigan Court of Appeals to the trial court for re-

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sentencing. People v. Jones, 394 Mich. 434, 435–36 (1975).1 Dewey had until November
14, 2016 — 42 days from October 3, 2016 — to file a second appeal of right in this case.
Mich. Ct. R. 7.204(A)(2)(c). There is no indication that he filed such an appeal.
Nevertheless, Dewey has until April 3, 2017 — six months from October 3, 2016 — to file
an application for leave to appeal to the Michigan Court of Appeals. Mich. Ct. R. 7.205(G).
Dewey will not be prejudiced if his habeas petition is dismissed without prejudice
during the pendency of his state court appeal. When state appellate courts affirm a habeas
petitioner's conviction but reverse his sentence, the judgment against the petitioner
becomes final, for commencing the one-year period for filing a habeas petition, when direct
review of the new sentence is completed. See Rashad v. Lafler, 675 F.3d 564, 567–69 (6th
Cir. 2012). Because Dewey was re-sentenced and could still file an appeal from that resentencing, the one-year limitations period has yet to commence. Thus, a stay of the
proceedings is neither necessary nor appropriate to preserve the federal forum for Dewey's
claims. See Schroeder v. Renico, 156 F. Supp. 2d 838, 845–46 (E.D. Mich. 2001).
CONCLUSION
The Court will summarily dismiss the petition for writ of habeas corpus without
prejudice and will also deny a certificate of appealability. To obtain a certificate of
appealability, a prisoner must make a substantial showing of the denial of a constitutional
right by showing that reasonable jurists could debate whether, or agree that, the petition
should have been resolved in a different manner, or that the issues presented were

1

Any second appeal, however, would be limited in scope to the issues raised on
remand, i.e., from the re-sentencing. See People v. Kincade, 206 Mich. App. 477, 481
(1994).
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adequate to deserve encouragement to proceed further. 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 483–84 (2000). Jurists of reason would not find debatable the
Court's determination that Dewey has failed to exhaust available state court remedies with
respect to his conviction. The Court will also deny Dewey leave to appeal in forma
pauperis, because the appeal would be frivolous. See Allen v. Stovall, 156 F. Supp. 2d 791,
798 (E.D. Mich. 2001).
ORDER
WHEREFORE, it is hereby ORDERED that the Petition for a Writ of Habeas Corpus
is SUMMARILY DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED.
IT IS FURTHER ORDERED that Petitioner is DENIED leave to appeal in forma
pauperis.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: March 28, 2017
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on March 28, 2017, by electronic and/or ordinary mail.
s/David P. Parker
Case Manager

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