Stevens v. Hoffner
OPINION and ORDER DENYING THE MOTION TO STAY, SUMMARILY DISMISSING 1 Petition for Writ of Habeas Corpus, DENYING THE 3 MOTION TO CONSOLIDATE CASE, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS Signed by District Judge Bernard A. Friedman. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
RANDY SCOTT STEVENS,
Civil Action No.17-CV-12615
HON. BERNARD A. FRIEDMAN
OPINION AND ORDER DENYING THE MOTION TO STAY, SUMMARILY
DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING THE
MOTION TO CONSOLIDATE, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner is presently incarcerated at the Lakeland Correctional Facility in
Coldwater, Michigan. In his application for a writ of habeas corpus, filed pro se under 28 U.S.C.
§ 2241, petitioner challenges his conviction for several counts of first-degree criminal sexual
conduct, several counts of second-degree criminal sexual conduct, and being a second habitual
offender. Petitioner has also filed a motion to hold the petition in abeyance so that he can complete
post-conviction proceedings in the state courts, in which he is attempting to exhaust six of the
twenty claims included in his petition.
Petitioner was convicted following a jury trial in the Jackson County Circuit Court.
His conviction was affirmed on appeal. People v. Stevens, 2016 WL 7333391 (Mich. Ct. App. Dec.
15, 2016); lv. den. --- N.W.2d ----2017 WL 3175015 (Mich. July 25, 2017).
Petitioner filed his habeas petition with this Court a few weeks ago. He seeks habeas
relief on twenty grounds. By his own admission, his last six claims have yet to be exhausted
because they were not raised on his appeal of right and are being raised for the first time in a postconviction motion for relief from judgment still pending before the Jackson County Circuit Court.
The instant petition must be dismissed without prejudice, because the petition
contains claims that have yet to be exhausted with the state courts.
As a general rule, a state prisoner seeking federal habeas relief must first exhaust
his or her 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). To exhaust a claim for federal habeas
review, a petitioner must present it to both state appellate courts, even where the state’s highest
court provides only discretionary review. See Regan v. Hoffner, 209 F. Supp. 2d 703, 710, n.3
(E.D. Mich. 2002) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999)). Although
exhaustion is not a jurisdictional matter, “it is a threshold question that must be resolved” before
the Court considers the petition. See Wagner v. Smith, 581 F. 3d 410, 415 (6th Cir. 2009). Federal
district courts must dismiss mixed habeas petitions which contain both exhausted and unexhausted
claims. See Pliler v. Ford, 542 U.S. 225, 230 (2004).
Petitioner acknowledges that his last six claims are unexhausted because they were
not presented on his appeal of right with the Michigan Court of Appeals or his application for leave
to appeal to the Michigan Supreme Court, but are raised for the first time in his post-conviction
motion. A habeas petition should be denied on exhaustion grounds where a state post-conviction
motion remains pending in the state courts. Juliano v. Cardwell, 432 F. 2d 1051, 1051 (6th Cir.
1970). Moreover, should the trial court deny petitioner’s post-conviction motion, he will have to
exhaust his remedies in the state appellate courts. See Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D.
Although the 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), this case presents
no exceptional or unusual circumstances that justify staying the case rather than dismissing it
without prejudice. The Michigan Supreme Court denied petitioner=s application for leave to appeal
on July 25, 2017. Because petitioner did not seek a writ of certiorari with the U.S. Supreme Court,
his judgment was set to become final on October 23, 2017. See Jimenez v. Quarterman, 555 U.S.
113, 119 (2009); Grayson v. Grayson, 185 F. Supp. 2d 747, 750 (E.D. Mich. 2002); 28 U.S.C. §
2244(d)(1). But his post-conviction motion tolls the limitations period until he completes the state
court appeals process. See Carey v. Saffold, 536 U.S. 214, 220–21 (2002); Matthews v. Abramajtys,
319 F. 3d 780, 787–88 (6th Cir. 2003). Because petitioner has now tolled the period of limitations,
he will not be prejudiced if his habeas petition was dismissed without prejudice. Thus, a stay of
the proceedings is not necessary or appropriate to preserve the federal forum for petitioner=s claims.
See Schroeder v. Renico, 156 F. Supp. 2d 838, 845–46 (E.D. Mich. 2001). Accordingly, the Court
will dismiss his petition without prejudice.
The Court 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.
28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that
reasonable jurists could debate whether 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). The Court declines to issue a certificate of
appealability, because “jurists of reason” would not debate whether this Court’s procedural ruling
was correct. 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. Dell v.
Straub, 194 F. Supp. 2d 629, 659 (E.D. Mich. 2001).
IT IS ORDERED that the petitioner’s application for a writ of habeas corpus is
dismissed without prejudice.
IT IS FURTHER ORDERED that petitioner’s motion to hold the petition in
abeyance is denied.
IT IS FURTHER ORDERED that petitioner’s motion to consolidate this action
with Civil Action No. 17-CV-11993 is denied as moot.
IT IS FURTHER ORDERED that a certificate of appealability and leave to appeal
in forma pauperis are denied for the reasons stated above.
s/Bernard A. Friedman
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: August 17, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court’s ECF System to their respective email or First Class
U. S. Mail Addresses disclosed on the Notice of Electronic Filing on August 17, 2017.
Case Manager Generalist
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