Hudson v. Palmer

Filing 6

ORDER DISMISSING CASE without prejudice for failure to exhaust. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID BLAKE HUDSON,
Petitioner,

Case No. 2:18-cv-10870
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

v.
CARMEN PALMER,
Respondent.
_________________________/

ORDER DISMISSING WITHOUT
PREJUDICE FOR FAILURE TO EXHAUST
David Blake Hudson, a Michigan state prisoner, seeks a writ of
habeas corpus. He challenges the trial court’s jurisdiction, because it failed
to provide him with counsel during his preliminary examination. The Court
will deny the petition for writ of habeas corpus without prejudice because
Petitioner has not shown exhaustion of state court remedies.
I.
In 2005, following a guilty plea, Petitioner was convicted of unarmed
robbery and sentenced to probation. Upon violation of his probation, he
was sentenced to a term of one to fifteen years. He failed to file a timely
application for leave to appeal his original sentence or his sentence on the
violation of probation. Years later, in 2017, Petitioner filed two applications
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for leave to appeal; both were denied. He did not appeal those denials to
the Michigan Supreme Court. Petitioner also filed a motion for relief from
judgment, arguing that the Circuit Court was without jurisdiction due to its
failure to appoint counsel during the preliminary examination, along with a
writ of mandamus, in the Oakland County Circuit Court. The court denied
both motions. Petitioner has not appealed these motions to the Michigan
Court of Appeals or the Michigan Supreme Court.1
II.
In the instant habeas petition, Petitioner sets forth one claim of error,
asserting that the Oakland County Circuit Court lacked jurisdiction over the
case because it failed to provide him with the assistance of counsel during
his preliminary examination. Petitioner has failed to exhaust this claim in
state court and the petition will be dismissed without prejudice on that
basis.
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 must first exhaust all state remedies. See O'Sullivan v. Boerckel,
526 U.S. 838, 845 (1999). The district court has a duty to raise any

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The Court takes judicial notice of and obtained this information from the publicly
available docket sheet for the criminal case in the Oakland County Circuit Court, People
v. Hudson, No. 2004-1982930FH) and the Michigan Court of Appeals and Supreme
Court, People v. Hudson, Nos. 339182 and 338771. See Walburn v. Lockheed Martin
Corp., 431 F.3d 966, 972 n.5 (6th Cir. 2005) (courts may take judicial notice of
proceedings in other courts).
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exhaustion issues sua sponte. See Prather v. Rees, 822 F.2d 1418, 1422
(6th Cir. 1987). Each issue must be presented to both the Michigan Court
of Appeals and the Michigan Supreme Court to satisfy the exhaustion
requirement. Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D.Mich.1999);
Morse v. Trippett, 37 F. App’x. 96, 103 (6th Cir.2002).
While it is true that “the exhaustion requirement is not a jurisdictional
one,” White v. Mitchell, 431 F.3d 517, 526 (6th Cir.2005), the Supreme
Court requires state prisoners to give state courts an opportunity to resolve
federal constitutional claims before seeking a writ of habeas corpus in
federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Baldwin v.
Reese, 541 U.S. 27, 29 (2004). “[T]he exhaustion rule protects “the state
court's role in the enforcement of federal law and prevent[s] disruption of
state judicial proceedings.” Matlock v. Rose, 731 F.2d 1236, 1240 (6th
Cir.1984) (quoting Rose v. Lundy, 455 U.S. 509, 518 (1982)).
Petitioner has the burden to prove exhaustion, and he has failed meet
this burden. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). A review
of the state court record shows that Petitioner has not appealed his motion
for relief from judgment to the Michigan Court of Appeals or the Michigan
Supreme Court. Petitioner must first exhaust his state-court remedies prior

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to seeking habeas relief in federal court. The petition for a writ of habeas
corpus is therefore DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED.
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
Dated: April 5, 2018

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 5, 2018, by electronic and/or ordinary mail and also on
David Blake Hudson #514702, Michigan Reformatory
1342 West Main Street, Ionia, MI 48846.
s/Barbara Radke
Deputy Clerk

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