Clay v. Haas
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 George Caram Steeh. (BRad)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
JEREMY WESLEY CLAY,
Case No. 2:17-CV-11522
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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
Jeremy Wesley Clay, (“petitioner”), confined at the Macomb
Correctional Facility in New Haven, Michigan, seeks the issuance of a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application,
petitioner challenges his conviction for several counts of first-degree
criminal sexual conduct. For the reasons stated below, the application for
a writ of habeas corpus is SUMMARILY DISMISSED WITHOUT
I. FACTUAL BACKGROUND
Petitioner was convicted after a jury trial in the Shiawassee County
Circuit Court. Petitioner’s conviction was affirmed on appeal. People v.
Clay, No. 314681, 2014 WL 2880301 (Mich. Ct. App. June 24, 2014); lv.
Den. 497 Mich. 905 (2014).
Petitioner filed a state petition for writ of habeas corpus pursuant to
M.C.R. 3.303(A)(2), which was denied. Clay v. Washington, No. 16-H31714-AH (Ionia Cty. Cir. Ct. Jan. 20, 2016). Petitioner then filed a
complaint for writ of habeas corpus with the Michigan Court of Appeals,
which was denied. Clay v. Department of Corrections/Director, No. 332573
(Mich.Ct.App. July 21, 2016); reconsideration den. No. 332573
(Mich.Ct.App. Aug. 25, 2016). Petitioner’s application for leave to appeal to
the Michigan Supreme Court was rejected as untimely. See Letter from
Inger Z. Meyer, Deputy Clerk of the Michigan Supreme Court, attached to
the petition for writ of habeas corpus.
Petitioner seeks a writ of habeas corpus on the following ground:
Should the state courts allow a criminal conviction to stand,
where the trial court erred in allowing (knowingly permitting)
one juror to answer for another juror during the polling of the
jury, in order to secure a conviction that would have otherwise
ended in mistrial.
The instant petition is subject to dismissal because petitioner’s claim
was not 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). See Picard v. Connor, 404 U. S.
270, 275-78 (1971). Federal district courts must dismiss habeas petitions
which contain unexhausted claims. See Pliler v. Ford, 542 U.S. 225, 230
(2004)(citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). 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); 28 U.S.C. §
Petitioner indicates that he raised his jury polling claim in his state petition
for writ of habeas corpus. This is insufficient to satisfy the exhaustion
requirement. Mich. Comp. Laws § 600.4310(3) states that 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. This statutory prohibition is
consistent with the rule under Michigan law 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. Department of Corrections, 103 Mich. App. 409, 414-415;
303 N. W. 2d 218 (1981)(citing People v. Price, 23 Mich. App. 663, 669; 179
N.W. 2d 177 (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; 371 N. W. 2d 862 (1985)(citing to In Re Stone,
295 Mich. 207; 294 N.W. 156 (1940)). A judgment which is merely erroneous,
rather than void, is subject to [appellate] review and may not be collaterally
attacked in a habeas proceeding. Id. This 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. Director of Institutional
Services Maxie Boy’s Training School, 84 Mich. App. 355, 357; 269 N. W. 2d 599
(1978). This line of cases is also consistent with M.C.R. 6.501, which states that
unless otherwise specified, a judgment of conviction and sentence entered by the
circuit or Recorder’s court that is not subject to appellate review under
subchapters 7.200 or 7.300 may be reviewed only in accordance with the
provisions of this subchapter, i.e., by the filing of a post-conviction motion for
relief from judgment. The 1989 Staff Comment to M.C.R. 6.501 states that
subchapter 6.500 “provides the exclusive means to challenge a conviction in
Michigan courts for a defendant who has had an appeal by right or by leave, who
has unsuccessfully sought leave to appeal, or who is unable to file an application
for leave to appeal to the Court of Appeals” because the time period for filing
such an appeal has elapsed. (emphasis added). Because Mich. Comp. Laws §
600.4310(3) does not permit the use of a state habeas action to challenge the
legality of a conviction, petitioner did not satisfy the exhaustion requirement by
challenging his conviction in such an action. See Nabors v. Warden, U.S.
Penitentiary at Lewisburg, Pa., 848 F.2d 192 (Table), 1988 WL 50635, * 1 (6th
Cir. May 23, 1988); See also McPharlin v. Woods, No. 2008 WL 4534234, * 1
(E.D. Mich. Oct. 6, 2008).
Petitioner can thus properly exhaust his claim by filing a post-conviction
motion for relief from judgment with the Shiawassee County Circuit Court under
Michigan Court Rule 6.500, et. seq. See Wagner v. Smith, 581 F. 3d 410, 419
(6th Cir. 2009). 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 has failed to exhaust his state court remedies and may still have
an available state court remedy with which to do so. Although 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 (2005), in
this case, a stay of petitioner’s application for a writ of habeas corpus would be
inappropriate, because petitioner’s sole claim is unexhausted and thus, the Court
lacks jurisdiction over the petition while the petitioner pursues his claim 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 Meyer v. Warren, 2006 WL
2644991, * 3 (E.D. Mich. Sept. 14, 2006).
The Court will summarily dismiss the petition for writ of habeas corpus
without prejudice. The Court will also deny a certificate of appealability to
petitioner. In order to obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
To demonstrate this denial, the applicant is required to show 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 adequate to
deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,
483-84 (2000). When a district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional claims, a
certificate of appealability should issue, and an appeal of the district court’s order
may be taken, if the petitioner shows 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 district court was
correct in its procedural ruling. Id. When a plain procedural bar is present and the
district court is correct to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in dismissing the petition or
that the petition should be allowed to proceed further. In such a circumstance, no
appeal would be warranted. Id. “The district court must issue or deny a certificate
of appealability when it enters a final order adverse to the applicant.” Rules
Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254; See also Strayhorn
v. Booker, 718 F. Supp. 2d 846, 875 (E.D. Mich. 2010).
The Court declines to issue a certificate of appealability, because “jurists of
reason” would not find it debatable whether this Court was correct in its
procedural ruling that petitioner had failed to exhaust an available state court
remedy with respect to his conviction. See Colbert v. Tambi, 513 F. Supp. 2d
927, 939 (S.D. Ohio 2007). The Court will also deny petitioner leave to appeal in
forma pauperis, because the appeal would be frivolous. Myers v. Straub, 159 F.
Supp. 2d 621, 629 (E.D. Mich. 2001).
Based upon the foregoing, IT IS 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 will be DENIED leave to appeal
in forma pauperis.
Dated: May 25, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 25, 2017, by electronic and/or ordinary mail and also on
Jeremy W. Clay #861817, Macomb Correctional Facility,
34625 26 Mile Road, New Haven, MI 48048.
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