Kinney v. Horton

Filing 14

OPINION AND ORDER holding petition for writ of habeas corpus in abeyance and closing case. Signed by District Judge Stephen J. Murphy, III. (DPer)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PATRICK KINNEY,

Case No. 2:17-cv-11545

Petitioner,

HONORABLE STEPHEN J. MURPHY, III

v.
CONNIE HORTON,
Respondent.
/

OPINION AND ORDER HOLDING PETITION FOR
WRIT OF HABEAS CORPUS IN ABEYANCE AND CLOSING THE CASE
Petitioner Patrick Kinney filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. ECF 1. He argued that his sentence of life imprisonment with
the possibility of parole for second-degree murder, imposed for a crime committed
when he was sixteen-years old, is unconstitutional under Miller v. Alabama, 567 U.S.
460 (2012). ECF 1, PgID 16–17. Kinney has not exhausted his state court remedies
for the claims raised in his petition. The Court will therefore hold this proceeding in
abeyance pending completion of the state court review process and will
administratively close the case.
BACKGROUND
In 1995, Kinney pleaded guilty to second-degree murder for the stabbing death
of Michael Melfi. ECF 11-2, PgID 381. Kinney, 16 years old at the time of the murder,
was charged and sentenced as an adult. ECF 11-6, PgID 677. On January 7, 1997,
Kinney was sentenced to life imprisonment with the possibility of parole. ECF 11-7,
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PgID 702. The Michigan Court of Appeals denied Kinney's application for leave to
appeal. People v. Kinney, No. 208731 (Mich. Ct. App. May 21, 1998). ECF 11-28, PgID
1147. Kinney did not seek leave to appeal in the Michigan Supreme Court. See ECF
11-35.
Kinney also sought relief in federal court multiple times. His first habeas
corpus petition, filed in 2001, was denied on the merits. See Kinney v. Jamrog, No.
01-cv-71124, ECF 24 (E.D. Mich. Apr. 23, 2002). But in 2008, the Sixth Circuit Court
of Appeals authorized Kinney to file a second habeas corpus petition, which was
assigned to the Honorable Avern Cohn. Kinney v. McQuiggin, No. 2:08-cv-11044, 2008
WL 5188734, at *2 (E.D. Mich. Dec. 9, 2008). Kinney's second petition challenged his
sentence under Roper v. Simmons, 543 U.S. 551 (2005), which held unconstitutional
the execution of those who are under the age of eighteen at the time of their offense.
Id. at *4. Judge Cohn denied the petition, id. at *5, and the Court of Appeals denied
a certificate of appealability, Kinney v. McQuiggin, No. 08-2645, ECF 21 (6th Cir.
Aug. 6, 2009).
In 2013, Kinney sought leave to file a third habeas petition, relying on Miller,
567 U.S. 460. In Miller, the Supreme Court held that a sentence of mandatory life
without parole for juveniles violated the Eighth Amendment. Id. at 479. But the Sixth
Circuit denied Kinney's motion because the Supreme Court had not yet held that
Miller applied retroactively. See in re: Kinney, No. 13-1806, ECF 19 (6th Cir. Jan. 14,
2014).

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In 2016, the Supreme Court held that Miller applied retroactively. Montgomery
v. Louisiana, 136 S. Ct. 718 (2016). Based upon the Montgomery decision, Kinney
sought, and was granted, leave to file a successive habeas petition. In re: Kinney, No.
16-1787, ECF 5 (6th Cir. May 3, 2017).
Kinney then filed the present petition and raised two claims. First, he alleged
that the sentencing judge did not consider Kinney's diminished culpability and
"capacity for change" when he imposed "a sentence that [did] not provide some
meaningful opportunity for release, in violation of the Eighth Amendment." ECF 71, PgID 212. Second, Kinney averred that his sentence was disproportionate and
violated the Eighth Amendment because his crime did not "reflect irreparable
corruption." Id. at 251.
After he filed the pending petition, Kinney filed a motion for relief from
judgment in the state trial court.1 See People v. Kinney, No. 95-052345, Dkt. Entry
No. 126 (Genesee Cty. Cir. Ct. Oct. 29, 2018). A copy of Kinney's motion for relief from
judgment has not been filed in this Court, but the state trial court's docket
summarized the claims raised: the motion is "based on newly discovered evidence &
the retroactive change in law announced in Montgomery v. Louisiana, 136 S. Ct. 718
(2016)." Id. On June 27, 2019, the trial court denied Kinney's motion. See People v.

Because Respondent has not filed the state-court record related to Kinney's motion
for relief from judgment, the Court takes judicial notice of and garners much of this
information from publicly available judicial records for the Genesee County Circuit
Court, see People v. Kinney, Case No. 95-052345, and the Michigan Court of Appeals,
see People v. Kinney, Case No. 351824. See Lyons v. Stovall, 188 F.3d 327, 332 n.3
(6th Cir. 1999) ("It is well-settled that [f]ederal courts may take judicial notice of
proceedings in other courts of record.") (internal quotations omitted).
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Kinney, No. 95-052345, Dkt. Entry No. 144 (Genesee Cty. Cir. Ct. Oct. 29, 2018). The
Michigan Court of Appeals subsequently denied leave to appeal. People v. Kinney, No.
351824, Dkt. Entry No. 12 (Mich. Ct. App. March 18, 2020). But on May 18, 2020, the
Michigan Court of Appeals granted Kinney's motion for reconsideration and granted
leave to appeal. People v. Kinney, No. 351824, Dkt. Entry No. 14 (Mich. Ct. App. May
18, 2020).
DISCUSSION
Kinney's petition advanced arguments based upon the Supreme Court's
decisions in Miller, which held that a mandatory non-parolable life sentence for
juvenile offenders violated the Eighth Amendment, and Montgomery, that held that
Miller is retroactive on collateral review. See ECF 7-1. The same claims are the
subject of an appeal currently pending before the Michigan Court of Appeals, and the
pending appeal is the first time Kinney has raised claims based upon Montgomery's
retroactive application of Miller in state court. These claims, therefore, are
unexhausted.
A state prisoner must exhaust available state remedies for each of the claims
presented in a habeas petition before seeking a federal writ of habeas corpus. See 28
U.S.C. § 2254(b)(1). A prisoner exhausts state remedies by presenting the factual and
legal basis for each claim to the state court of appeals and to the state supreme court.
Wagner v. Smith, 581 F.3d 410, 414–15 (6th Cir. 2009). The exhaustion requirement
"reduces friction between state and federal courts systems by avoiding the
unseem[liness] of a federal district court's overturning a state court conviction
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without the state courts having had an opportunity to correct the constitutional
violation in the first instance." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
(internal quotation omitted; alteration in original). To avoid this unseemliness, the
Court will defer action on the pending petition until the state court has had an
opportunity to rule on the matter. Id.
When a petition raises unexhausted claims, the Court may hold the proceeding
in abeyance pending exhaustion of state court remedies if there is good cause for the
failure to exhaust, if the unexhausted claims are not plainly meritless, and if there is
no indication that the petitioner engaged in intentionally dilatory litigation tactics.
Rhines v. Weber, 544 U.S. 269, 277–78 (2005). Here, Kinney's claims are not plainly
meritless and are based upon a new rule of law previously unavailable. And there is
no indication that Kinney is attempting to unfairly delay this or the state court
proceedings. Further, dismissal of the petition might render a future petition
untimely. For these reasons, the Court will stay the petition and hold further
proceedings in abeyance while Kinney completes exhaustion of state court remedies.
ORDER
WHEREFORE, it is hereby ORDERED that Petitioner's habeas petition [71] is STAYED and further proceedings in this matter held in ABEYANCE. If
Petitioner is unsuccessful in state court and wishes to proceed with this petition, he
must file a motion to lift the stay in this Court within sixty days after the conclusion
of the state court proceedings.

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IT IS FURTHER ORDERED that the Clerk of Court shall administratively
CLOSE this case.
SO ORDERED.

Dated: May 28, 2020

s/ Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on May 28, 2020, by electronic and/or ordinary mail.
s/ David P. Parker
Case Manager

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