Nettles v. Palmer

Filing 4

ORDER dismissing the Habeas Petition and declining to issue a certificate of appealability. Signed by District Judge Nancy G. Edmunds. (CBet)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CASSALLE LEROY NETTLES,
Petitioner,
CASE NO. 17-11549
HONORABLE NANCY G. EDMUNDS

v.
CARMEN PALMER,
Respondent.
______________________________/

ORDER DISMISSING THE HABEAS PETITION AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner Cassalle Leroy Nettles has filed a habeas corpus petition under 28
U.S.C. § 2254. The petition challenges Petitioner’s Oakland County convictions for firstdegree murder, armed robbery, and two firearm offenses. Petitioner’s ground for relief
alleges that prejudicial evidence concerning other acts was admitted against him at trial.
The Court has determined that this claim is procedurally defaulted. Therefore, the
petition will be dismissed.
I. Background
The charges against Petitioner arose from the fatal shooting of Duraid Lossia
during a robbery at a party store in Farmington Hills, Michigan. At Petitioner’s jury trial
in Oakland County Circuit Court,
[t]he prosecution presented substantial evidence, including [Petitioner’s]
own statement, that placed [him] in the store at the time of the robbery.
Indeed, the timeline evidence established by testimony from customers
who observed [Petitioner] and were in the store either shortly before and
shortly after the shooting, and the electronic evidence of the times of their
purchases, supported an inference that [Petitioner] was the only person in
the store at that time. While no gun was recovered, the police did recover

a holster at [Petitioner’s] home. Although [Petitioner] told the police that
he just happened to be in the store at the time other assailants entered the
store and robbed and shot the owner, no one else was seen by other
customers, or caught on camera, during the narrow timeframe the robbery
could have been committed. . . . The prosecution also presented
evidence that [Petitioner] had parked his vehicle at a distant location from
the store and then walked to the store, which is inconsistent with his
purported reason for being there. In addition, the clothing [Petitioner] wore
into the store at the time of the incident disappeared, [his] story changed
several times during his police interview, and the prosecution presented
evidence that [Petitioner] had attempted to establish a false alibi.
People v. Nettles, No. 324408, 2016 WL 1125931, at *2 (Mich. Ct. App. Mar. 22, 2016).
The jury found Petitioner guilty of first-degree (felony) murder, Mich. Comp. Laws
§ 750.316(1)(b), armed robbery, Mich. Comp. Laws § 750.529, felon in possession of a
firearm, Mich. Comp. Laws § 750.224f, and three counts of felony firearm, Mich. Comp.
Laws § 750.227b. On October 20, 2014, the trial court sentenced Petitioner as a
habitual offender to concurrent terms of life imprisonment for the murder, thirty-seven to
sixty years for the armed robbery, and seventy-six months to fifty years for being a felon
in possession of a firearm. The court sentenced Petitioner to a consecutive sentence of
two years in prison for the felony-firearm convictions.
In an appeal as of right, Petitioner raised claims regarding the sufficiency of the
evidence adduced at trial, the admission of “other acts” evidence, the prosecutor’s
closing argument, and trial counsel’s failure to object to the prosecutor’s conduct. The
Michigan Court of Appeals found no merit in Petitioner’s claims and affirmed his
convictions in an unpublished, per curiam decision on March 22, 2016. See Nettles,
2016 WL 1125931. Petitioner did not seek further review of his convictions in state

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court, and, under Michigan Court R. 7.305(C)(2), he had only fifty-six days, or until May
17, 2016, to file an application for leave to appeal in the Michigan Supreme Court.
On May 15, 2017, Petitioner filed his habeas corpus petition through counsel.
His sole ground for relief is that the admission of minimally probative, but exceedingly
prejudicial, “other acts” evidence deprived him of a fair trial.
On June 21, 2017, the Court ordered Petitioner to show cause why his petition
should not be dismissed on the basis that his ground for relief is unexhausted or
procedurally defaulted. In a response to the Court’s order, Petitioner argues that his
claim is not procedurally defaulted and that his petition should not be dismissed for
failure to exhaust state remedies because he raised his claim in the Michigan Court of
Appeals and has no state remedy left to seek.
II. Discussion
The doctrine of exhaustion of state remedies requires state prisoners to present
their claims to the state courts before raising the claims in a federal habeas corpus
petition. See 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 839 (1999).
This requirement is satisfied if the prisoner “invok[es] one complete round of the State’s
established appellate review process,” including a petition for discretionary review in the
state supreme court “when that review is part of the ordinary appellate review procedure
in the State.” O’Sullivan, 526 U.S. at 845, 847. Thus, to properly exhaust state
remedies, prisoners must fairly present the factual and legal basis for each of their
claims to the state court of appeals and to the state supreme court before raising the

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claims in a habeas corpus petition. Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir.
2009).
Petitioner admits that he did not seek leave to appeal his convictions in the
Michigan Supreme Court. See Pet. for Writ of Habeas Corpus, ECF No. 1, ¶¶ 9(g) and
10. Therefore, he has not exhausted state remedies for his claim by raising the claim in
both the Michigan Court of Appeals and the Michigan Supreme Court.
The exhaustion requirement, however, “refers only to remedies still available at
the time of the federal petition,” Engle v. Isaac, 456 U.S. 107, 125 n. 28 (1982), and, as
noted above, Petitioner missed the deadline for filing an application for leave to appeal
in the Michigan Supreme Court. Therefore, his claim must be treated as exhausted,
but procedurally defaulted, unless he can demonstrate cause and prejudice for the
default. Gray v. Netherland, 518 U.S. 152, 161-62 (1996). As explained in Hannah v.
Conley, 49 F.3d 1193 (6th Cir. 1995),
If a prisoner fails to present his claims to the state courts and he is now
barred from pursuing relief there, his petition should not be dismissed for
lack of exhaustion because there are simply no remedies available for him
to exhaust. However, the prisoner will not be allowed to present claims
never before presented in the state courts unless he can show cause to
excuse his failure to present the claims in the state courts and actual
prejudice to his defense at trial or on appeal. Coleman v. Thompson, 501
U.S. 722, 750–51, 111 S.Ct. 2546, 2565, 115 L.Ed.2d 640 (1991).
Id. at 1195–96. “[T]o establish cause, a habeas corpus petitioner must show that ‘some
objective factor external to the defense’ prevented the petitioner’s compliance with a
state procedural rule.” Bonilla v. Hurley, 370 F.3d 494, 498 (6th Cir. 2004) (quoting
Murray v. Carrier, 477 U.S. 478, 488 (1986)).

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In the alternative, a petitioner must “demonstrate that failure to consider the
claims will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750.
“A fundamental miscarriage of justice results from the conviction of one who is ‘actually
innocent.’ ” Lundgren v. Mitchell, 440 F.3d 754, 764 (6th Cir. 2006) (quoting Carrier,
477 U.S. at 496). “To be credible, [a claim of actual innocence] requires [the] petitioner
to support his allegations of constitutional error with new reliable evidence – whether it
be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence – that was not presented at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995).
Petitioner argues that his claim is not procedurally defaulted because there is no
constitutional right to counsel in the Michigan Supreme Court, because he did not have
the resources to obtain counsel in the Michigan Supreme Court, and because review is
totally discretionary in the Michigan Supreme Court. He contends that he should not be
punished for being indigent and unable to secure counsel to file an application for leave
to appeal in the state supreme court. Response to Order to Show Cause, ECF No. 3.
Petitioner’s pro se status before the state supreme court “is insufficient to
establish cause to excuse his procedural default.” Bonilla, 370 F.3d at 498 (citing
Hannah, 49 F.3d at 1197); see also Smittie v. Lockhart, 843 F.2d 295, 298 (8th Cir.
1988) (concluding that the prisoner’s pro se status and educational background were
not sufficient cause for failing to pursue state-court remedies). Indigence and a lack of
funds also are not “cause” for a procedural default. Caldwell v. Bell, 9 F. App’x 472, 482
(6th Cir. 2001). And even though review is discretionary in the Michigan Supreme
Court, Mich. Ct. R. 7.303(B)(1), Petitioner was not precluded from seeking review in the

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state supreme court. He could have completed an application for leave to appeal and
supported the application with the brief that he used in the Michigan Court of Appeals.
The Court concludes that Petitioner has failed to establish “cause” for his
procedural default. And because “both cause and prejudice must be shown to excuse a
procedural default, the failure to establish cause eliminates the need to consider
prejudice.” Bonilla, 370 F.3d at 497 (citing Carrier, 477 U.S. at 494-95).
Furthermore, Petitioner has not submitted any new and reliable evidence
demonstrating that he is actually innocent of the crimes for which he is incarcerated.
Therefore, a miscarriage of justice will not occur as a result of the Court’s failure to
consider the merits of Petitioner’s claim. Welch v. Burke, 49 F. Supp.2d 992, 1007
(E.D. Mich. 1999).
III. Conclusion and Order
Petitioner’s claim is procedurally defaulted, and he has not shown cause to
excuse the error. He also is not entitled to review of his claim under the “miscarriage of
justice” exception to the procedural-default rule. The Court therefore dismisses the
habeas corpus petition (ECF No. 1) because the sole ground for relief is procedurally
defaulted. This case is hereby closed.
“[A] prisoner seeking postconviction relief under 28 U.S.C. § 2254 has no
automatic right to appeal a district court’s denial or dismissal of the petition. Instead,
[the] petitioner must first seek and obtain a [certificate of appealability.]” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003). A certificate of appealability may issue “only if the
applicant has made a substantial showing of the denial of a constitutional right.” 28

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U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating that jurists of
reason could disagree with the district court’s resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El, 537 U.S. at 327.
Reasonable jurists could not debate the Court’s resolution of Petitioner’s claim,
nor conclude that the issue deserves encouragement to proceed further. The Court
therefore declines to issue a certificate of appealability.

s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
Dated: 10/17/17

CERTIFICATION
I hereby certify that a copy of this Order and Judgment was mailed to counsel
and/or parties of record on this 17th day of October, 2017 by regular mail and/or
CM/ECF.
s/ Carol J Bethel
Case Manager

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