Crumley v. Jackson

Filing 10

MEMORANDUM OPINION and ORDER Holding in Abeyance the 1 Petition for Writ of Habeas Corpus and Administratively Closing the Case. Signed by District Judge Arthur J. Tarnow. (CPic)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MATTHEW ELIOTT CRUMLEY,
Petitioner,
v.

Civil No. 2:17-CV-11318
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

SHANE JACKSON,
Respondent,
_________________________________/
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT
OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE.
Matthew Elliot Crumley, (“Petitioner”), confined at the Carson City
Correctional Facility in Carson City, Michigan, filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for
armed robbery, Mich. Comp. Laws § 750.529. Respondent filed an answer to the
petition for writ of habeas corpus. As part of the answer, respondent argues that
the petition is subject to dismissal because it contains at least one claim which
has not been exhausted with the state courts. For the reasons that follow, in lieu
of dismissing the petition without prejudice, this Court holds the petition in
abeyance and stays the proceedings under the terms outlined in this opinion to
permit petitioner to return to the state courts to exhaust his additional claims. If
this fails, the petition will be dismissed without prejudice.

1

Crumley v. Jackson, 2:17-CV-11318
I. Background
Petitioner pleaded nolo contendere to the above charge in the Macomb
County Circuit Court on February 24, 2015 and was sentenced on the same day
to 10-20 years in prison.
Petitioner moved to withdraw his plea, which the trial court denied on
September 17, 2015.
Petitioner, through counsel, filed an application for leave to appeal, in
which he raised what make up the first two claims in his habeas petition. The
Michigan Court of Appeals denied petitioner leave to appeal. People v. Crumley,
No. 329590 (Mich.Ct.App. Dec. 7, 2015).
Petitioner, through his appellate counsel, filed a motion for reconsideration
with the Michigan Court of Appeals. In this motion, appellate counsel indicated
that she had received a pro per supplemental brief from petitioner on December
7, 2015, the same day that the Michigan Court of Appeals denied petitioner leave
to appeal. In this pro per supplemental brief, petitioner attempted to raise what
now makes up his third claim. Appellate counsel noted that had petitioner filed an
appeal of right, as opposed to the application for leave to appeal that he filed in
his case, he would have had 84 days from the date that his original appeal was
filed to file a supplemental pro per brief under Standard 4 of the Michigan
Appellate Court rules. Appellate counsel urged the Michigan Court of Appeals to

2

Crumley v. Jackson, 2:17-CV-11318
accept petitioner’s supplemental brief for filing. The Michigan Court of Appeals
denied petitioner ’s motion for reconsideration. People v. Crumley, No. 329590
(Mich.Ct.App. Jan. 21, 2016). 1
Petitioner filed a pro per application for leave to appeal to the Michigan
Supreme Court, in which he raised the three claims contained in the current
habeas petition. The Michigan Supreme Court denied petitioner leave to appeal.
People v. Crumley, 499 Mich. 971, 880 N.W.2d 541 (2016).
Petitioner filed a petition for writ of habeas corpus, seeking relief on the
following grounds:
I. The no contest plea was not knowing and voluntary and the
procedure was defective.
II. Constitutional right to to be sentenced with accurate information was
violated.
III. Ineffective assistance of trial counsel.
II. Discussion
Respondent argues that petitioner’s habeas application is subject to
dismissal because it contains at least one claim which has not been exhausted
with the state courts as a federal constitutional claim.
As a general rule, a state prisoner seeking federal habeas relief must first
1

See Dkts. # 9-19, 9-20.

3

Crumley v. Jackson, 2:17-CV-11318
exhaust his or her 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); Hannah v. Conley, 49 F. 3d 1193, 1195 (6th Cir. 1995). A petition for a
writ of habeas corpus filed by a state prisoner shall not be granted unless the
petitioner has exhausted his available state court remedies, there is an absence
of available state corrective process, or circumstances exist that render such
process ineffective to protect the petitioner’s rights. See Turner v. Bagley, 401 F.
3d 718, 724 (6th Cir. 2005). 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 habeas corpus relief.
Hafley v. Sowders, 902 F. 2d 480, 483 (6th Cir. 1990). Federal district courts
normally must dismiss mixed habeas petitions which contain both exhausted and
unexhausted claims. See Pliler v. Ford, 542 U.S. 225, 230 (2004)(citing Rose v.
Lundy, 455 U.S. 509, 510, 522 (1982)). A habeas petitioner has the burden of
proving that he or she exhausted his or her claims with the state courts. See
Caver v. Straub, 349 F.3d 340, 345 (6th Cir. 2003).
Respondent first argues that petitioner’s second claim alleging the use of
inaccurate information at sentencing was not exhausted as a federal
constitutional issue because the claim was raised in the state courts only as a
violation of state sentencing law.

4

Crumley v. Jackson, 2:17-CV-11318
The exhaustion requirement requires that a federal habeas petitioner fairly
present the substance of each federal constitutional claim to state courts using
citations to the United States Constitution, federal decisions using constitutional
analysis, or state decisions employing constitutional analysis in similar fact
patterns. Levine v. Torvik, 986 F. 2d 1506, 1516 (6th Cir. 1993); Matthews v.
Abramajtys, 92 F. Supp. 2d 615, 627 (E.D. Mich. 2000). In order to exhaust state
court remedies, a habeas petitioner must present his or her claim to the state
courts as a federal constitutional issue, not merely as an issue arising under state
law. Koontz v. Glossa, 731 F. 2d 365, 368 (6th Cir. 1984)(cites omitted). It is not
enough that all the facts necessary to support the federal claim were presented to
the state courts, or that a somewhat similar state law claim was made. Anderson
v. Harless, 459 U.S. 4, 6 (1982). The doctrine of exhaustion requires that the
same claim under the same theory be presented to the state courts before raising
it in a federal habeas petition. Pillette v. Foltz, 824 F. 2d 494, 497 (6th Cir. 1987).
The mere similarity of claims between the state appeals and the federal habeas
petition is insufficient for exhaustion purposes. Duncan v. Henry, 513 U.S. 364,
366 (1995).
Petitioner’s counsel only raised a claim in the state courts that the trial
court incorrectly scored Offense Variable 13 of the Michigan Sentencing

5

Crumley v. Jackson, 2:17-CV-11318
Guidelines. 2 Counsel did not raise a claim that the trial court judge relied on
inaccurate information in sentencing petitioner. Petitioner’s inaccurate
sentencing information claim has not been exhausted with the state courts.
Although not argued by respondent, this Court notes that petitioner’s third
claim was not properly exhausted with the state courts because it was raised for
the first time only in petitioner’s motion for reconsideration with the Michigan
Court of Appeals. Although respondent failed to raise the exhaustion issue in his
answer with regards to this claim, the exhaustion defense is not waived unless
the State, through counsel, expressly waives the exhaustion requirement. See
Rockwell v. Yukins, 217 F.3d 421, 423-24 (6th Cir. 2000); 28 U.S.C. § 2254(b)(3).
A state’s failure to raise the exhaustion requirement in the district court does not
expressly waive the exhaustion issue. See D'Ambrosio v. Bagley, 527 F.3d 489,
497 (6th Cir. 2008). “Moreover, considerations of comity and federalism require
this Court ‘to review the exhaustion issue sua sponte.’” Benoit v. Bock, 237 F.
Supp. 2d 804, 806 (E.D. Mich. 2003)(quoting Prather v. Rees, 822 F.2d 1418,
1422 (6th Cir.1987)(citing Parker v. Rose, 728 F.2d 392, 394 (6th Cir.1984)).
Presenting additional issues to an intermediate state appellate court for the
first time in a motion for reconsideration or rehearing does not constitute a fair
presentation of claims for purposes of exhaustion. See Alcorn v. Smith, 724 F.2d
2

See Dkt. # 9-19.

6

Crumley v. Jackson, 2:17-CV-11318
37, 40 (6th Cir.1983), vacated on other grounds, 471 U.S. 1096 (1985), See also
Drain v. Woods, 902 F. Supp. 2d 1006, 1032 (E.D. Mich. 2012); aff'd, 595 F.
App’x. 558 (6th Cir. 2014)(petitioner did not properly exhaust claims when he
raised them for first time in a motion for reconsideration with the Michigan Court
of Appeals); Paredes v. Johnson, 230 F. 3d 1359, 2000 WL 1206544, * 1-2 (6th
Cir. Aug. 18, 2000)(issues raised for the first time in a motion for rehearing with
the Michigan Court of Appeals were unexhausted for purposes of federal habeas
review). Petitioner’s third claim is unexhausted because he raised it only for the
first time in his motion for reconsideration with the Michigan Court of Appeals.
The mere fact that petitioner then attempted to raise his third claim in his
application for leave to appeal to the Michigan Supreme Court did not properly
exhaust his claim. A habeas petitioner’s raising of a claim for the first time before
the state courts on discretionary review does not equal a “fair presentation” of the
claim to the state courts for exhaustion purposes. See Castille v. Peoples, 489
U.S. 346, 351 (1989). Because petitioner failed to adequately present his third
claim on his direct appeal with the Michigan Court of Appeals, the subsequent
presentation of this claim to the Michigan Supreme Court would 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). Petitioner’s third claim is unexhausted.

7

Crumley v. Jackson, 2:17-CV-11318
Petitioner has failed to exhaust two claims with the state courts.
Respondent argues that petitioner’s second claim is partially unexhausted,
but urges this Court to reject the claim on the merits. Although respondent failed
to argue that petitioner’s third claim was unexhausted, respondent nevertheless
argues that this claim should be denied because it is without merit. This Court
declines to deny petitioner relief on his unexhausted claims at this time.
A habeas petitioner’s failure to exhaust his or her state court remedies
does not deprive a federal court of its jurisdiction to consider the merits of the
habeas petition. Granberry v. Greer, 481 U.S. 129, 131 (1987). An unexhausted
claim may be adjudicated if the unexhausted claim is without merit, such that
addressing the claim would be efficient and would not offend the interest of
federal-state comity. Prather v. Rees, 822 F. 2d at 1422; see also 28 U.S.C. §
2254(b)(2)(habeas petition may be denied on the merits despite the failure to
exhaust state court remedies). In certain cases, a federal court should dismiss a
non-federal or frivolous claim on the merits to save the state courts the useless
review of meritless constitutional claims. Cain v. Redman, 947 F. 2d 817, 820
(6th Cir. 1991).
Neither of petitioner’s claims is plainly meritless. Petitioner in his second
claim alleges that the trial court used inaccurate information in fashioning his
sentence. A criminal defendant possesses a constitutional right not to be

8

Crumley v. Jackson, 2:17-CV-11318
sentenced on the basis of “misinformation of constitutional magnitude.” Roberts v.
United States, 445 U.S. 552, 556 (1980) (quoting United States v. Tucker, 404
U.S. 443, 447 (1972)); see Townsend v. Burke, 334 U.S. 736, 741 (1948)(stating
that reliance on “extensively and materially false” information, which the prisoner
had no opportunity to correct, violates due process of law).
Petitioner alleges in his third claim that trial counsel was ineffective for
advising him to plead guilty to the armed robbery charge, because there was no
evidence that a weapon was used or even implied during the robbery. Petitioner
also alleges that he was coerced by counsel into pleading nolo contendere. A
criminal defendant has a Sixth Amendment right to the effective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The Sixth
Amendment right to counsel extends to the plea bargaining process. Lafler v.
Cooper, 132 S. Ct. 1376, 1384 (2012); Missouri v. Frye, 132 S. Ct. 1399, 1406
(2012). Thus, a criminal defendant during plea negotiations is “entitled to the
effective assistance of competent counsel.” Lafler, 132 S. Ct. at 1384 (quoting
McMann v. Richardson, 397 U.S. 759, 771 (1970)).
Petitioner appears to be raising colorable claims.
“In determining whether a claim is ‘plainly meritless,’ principles of comity
and federalism demand that the federal court refrain from ruling on the merits of
the claim unless ‘it is perfectly clear that the petitioner has no hope of prevailing.’”

9

Crumley v. Jackson, 2:17-CV-11318
Dixon v. Baker, 847 F. 3d 714, 722 (9th Cir. 2017)(quoting Cassett v. Stewart,
406 F. 3d 614, 624 (9th Cir. 2005)). “A contrary rule would deprive state courts of
the opportunity to address a colorable federal claim in the first instance and grant
relief if they believe it is warranted.” Id. (quoting Cassett, 406 F. 3d at 624).
In Wagner v. Smith, 581 F. 3d 410, 414 (6th Cir. 2009), the Sixth Circuit
addressed a habeas petition involving several unexhausted prosecutorial
misconduct and ineffective assistance of counsel claims that had been rejected
on the merits by another judge in this district. The Sixth Circuit agreed with the
respondent that none of these claims had been properly exhausted with the state
courts. Id. at 415-19. The Sixth Circuit remanded the matter back to the district
court. Although the Sixth Circuit discussed the four available options for
addressing a habeas petition which contained unexhausted claims, including the
option of denying the unexhausted claims on the merits, Id. at 419 (discussing the
four options), the Sixth Circuit strongly suggested that the district court should
consider staying the petition and holding it in abeyance to permit petitioner to
return to the state courts to properly exhaust these claims, because the claims
were not “plainly meritless.” Id. at 419-20. On remand, the district court vacated
its opinion and order denying petitioner habeas relief, held the petition in
abeyance to permit petitioner to return to the state courts to exhaust his claims,
and administratively closed the case. Wagner v. Smith, U.S.D.C. 2:06-CV-10514

10

Crumley v. Jackson, 2:17-CV-11318
(E.D. Mich. Nov. 13, 2009).
More recently, the Sixth Circuit reversed this Court for rejecting an
unexhausted ineffective assistance of counsel claim on the merits. See Hickey v.
Hoffner, No. 16-1186, 2017 WL 2829523, ---- F. App’x.---- (6th Cir. June 30,
2017). In the Hickey case, the petitioner claimed that trial counsel was ineffective
for failing to call alibi witnesses and other exculpatory witnesses. Although the
Sixth Circuit agreed with this Court that these claims were unexhausted because
they had been presented to the state courts only for the first time in the
petitioner’s application for leave to appeal to the Michigan Supreme Court, the
Sixth Circuit noted that petitioner still had an available post-conviction remedy to
properly exhaust these claims. Id., at * 3. The Sixth Circuit then stated that they
could not find petitioner’s ineffective assistance of counsel claims to be plainly
meritless, so as to deny relief on the merits, because petitioner raised a
“colorable” ineffective assistance of counsel claim. Id., at * 4. The Sixth Circuit
vacated this Court’s decision to deny habeas relief on the merits and remanded
the matter for a determination of whether the petition should be held in abeyance
to allow petitioner to return to the state courts to exhaust his claims. Id.
This Court cannot state that petitioner’s second and third claims are plainly
meritless because he raises colorable claims. At a minimum, this Court is unable
to state that petitioner has absolutely no hope of prevailing on these claims either

11

Crumley v. Jackson, 2:17-CV-11318
in the state courts or in the federal court. Because these unexhausted claims,
particularly the ineffective assistance of counsel claim, have “not yet been fully
developed, it would be premature for the Court to assess their merits.” Adams v.
Haas, No. 15-11685, 2017 WL 264506, at * 2 (E.D. Mich. Jan. 20, 2017). 3
Exhausting state court remedies in this case requires the filing of a postconviction motion for relief from judgment under M.C.R. 6.500. See Wagner v.
Smith, 581 F. 3d at 419. Petitioner could exhaust these claims by filing a motion
for relief from judgment with the Macomb County Circuit Court under M.C.R.
6.502. Denial of a motion for relief from judgment is reviewable by the Michigan
Court of Appeals and the Michigan Supreme Court upon the filing of an
application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. See
Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997). Petitioner, in fact, is
required to appeal the denial of his post-conviction motion to the Michigan Court
of Appeals and the Michigan Supreme Court in order to properly exhaust any
claims that he would raise in his post-conviction motion. See e.g. Mohn v. Bock,
3

The Court notes that although the Sixth Circuit in Wagner, 581 F. 3d at
419-20, believed that the unexhausted claims were not plainly meritless, so as to
justify holding the case in abeyance to permit petitioner to exhaust these claims,
the Sixth Circuit affirmed the denial of habeas relief on these same claims when
the case came before that court again after petitioner exhausted these claims in
the state courts. See Wagner v. Klee, 620 F. App’x. 375, 377 (6th Cir.), cert.
denied sub nom. Wagner v. Burt, 136 S. Ct. 590, 193 L. Ed. 2d 474 (2015). This
suggests that the threshold for a claim to not be considered plainly meritless is
fairly low.

12

Crumley v. Jackson, 2:17-CV-11318
208 F. Supp. 2d 796, 800 (E.D. Mich. 2002).
The U.S. Supreme Court indicated that a habeas petitioner who is
concerned about the possible effects of his state post-conviction filings on the
Antiterrorism and Effective Death Penalty Act’s statute of limitations could file a
“protective” petition in federal court and then ask for the petition to be held in
abeyance pending the exhaustion of state post-conviction remedies. See Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005)(citing Rhines v. Weber, 544 U.S. 269
(2005)). A federal court may stay a federal habeas petition and hold further
proceedings in abeyance pending resolution of state court post-conviction
proceedings, if there is good cause for failure to exhaust and the unexhausted
claims are not “plainly meritless.” Rhines, 544 U.S. at 278.
Petitioner’s claims are not “plainly meritless.” Further, petitioner may
assert that he did not previously raise these claims in the state courts due to the
ineffective assistance of appellate counsel. Wagner, 581 F. 3d at 419, nn. 4 and
5. Finally, it does not appear that petitioner has engaged in “intentionally dilatory
tactics.”
When a district court determines that a stay is appropriate pending
exhaustion of state court remedies, the district court “should place reasonable
time limits on a petitioner's trip to state court and back.” Rhines, 544 U.S. at 278.
To ensure that petitioner does not delay in exhausting his state court remedies,

13

Crumley v. Jackson, 2:17-CV-11318
the Court imposes upon petitioner time limits within which he must proceed. See
Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). Petitioner must present his
claims in state court by filing a post-conviction motion for relief from judgment
with the state trial court within ninety days from the date of this Order. See id.
Further, he must ask this Court to lift the stay within ninety days of exhausting his
state court remedies. See id. “If the conditions of the stay are not met, the stay
may later be vacated nunc pro tunc as of the date the stay was entered, and the
petition may be dismissed.” Palmer, 276 F. 3d at 781 (internal quotation
omitted).4
III. ORDER
Accordingly, IT IS ORDERED that that petitioner may file a motion for relief
from judgment with the state court within ninety (90) days of receipt of this Court's
order. If petitioner fails to file a motion for relief from judgment with the state
courts by that date, the Court will dismiss the present petition without prejudice.
If petitioner files a motion for relief from judgment, he shall notify this Court
that such motion papers have been filed in state court. The case shall then be
held in abeyance pending the petitioner’s exhaustion of the claim or claims.
Petitioner shall re-file his habeas petition within 90 days after the

4

This Court has the discretion to stay the petition and hold it in abeyance even though petitioner
did not specifically request this Court to do so. See e.g. Banks v. Jackson, 149 F. App’x. 414, 422, n. 7
(6th Cir. 2005).

14

Crumley v. Jackson, 2:17-CV-11318
conclusion of the state court post-conviction proceedings. Petitioner is free at
that time to file an amended habeas petition which contains any newly exhausted
claims.
Failure to comply with any of the conditions of the stay could result in the
dismissal of the habeas petition. Calhoun v. Bergh, 769 F.3d 409, 411 (6th Cir.
2014).
To avoid administrative difficulties, the Court ORDERS the Clerk of Court
to CLOSE this case for statistical purposes only. Nothing in this order or in the
related docket entry shall be considered a dismissal or disposition of this matter.
See Sitto v. Bock, 207 F. Supp. 2d 668, 677 (E.D. Mich. 2002).
It is further ORDERED that upon receipt of a motion to reinstate the
habeas petition following exhaustion of state remedies, the Court shall order the
Clerk to reopen this case for statistical purposes.
SO ORDERED.

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: September 21, 2017
I hereby certify that a copy of the foregoing document was served upon
parties/counsel of record on September 21, 2017, by electronic and/or ordinary
mail.
s/Catherine A. Pickles
Judicial Assistant

15