Cole v. Gidley

Filing 7

OPINION AND ORDER SUMMARILY DISMISSING WITHOUT PREJUDICE The Petition for Writ of Habeas Corpus; Denying Motion for Appointment of Counsel; Declining to Issue a Certificate of Appealability; Denying Leave to Appeal In Forma Pauperis Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LARRY JOHN COLE,
Petitioner,

Civil No. 2:18-CV-11254
HONORABLE VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

v.
LORI GIDLEY,
Respondent,
___________________________________/

OPINION AND ORDER SUMMARILY DISMISSING WITHOUT PREJUDICE
THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING THE MOTION
FOR THE APPOINTMENT OF COUNSEL, DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY, AND DENYING PETITIONER LEAVE
TO APPEAL IN FORMA PAUPERIS
Larry John Cole, (“Petitioner”), confined at the Central Michigan Correctional
Facility in St. Louis, Michigan, filed a pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. Petitioner challenges his conviction for attempted second-degree
arson, M.C.L.A. 750.731.
For the reasons that follow, the petition for writ of habeas corpus is SUMMARILY
DISMISSED WITHOUT PREJUDICE. The motion for the appointment of counsel is
DENIED.
I. Background
Petitioner pleaded nolo contendere in the Emmett County Circuit Court and was
sentenced to three to five years in prison. Petitioner filed a motion to withdraw his plea,
which was denied.
1

Petitioner’s conviction was affirmed on appeal. People v. Cole, No. 335444
(Mich.Ct.App. Dec. 20, 2016); lv. den. ---- Mich.----; 906 N.W. 2d 784 (2018).
Petitioner seeks a writ of habeas corpus on the following grounds: 1) The trial
judge abused his discretion in denying Petitioner’s motion to withdraw his nolo
contendere plea, 2) the judge failed to articulate reasons for departing above the
sentencing guidelines range, and 3) ineffective assistance of trial and appellate counsel
II. Discussion
The Court dismisses the petition for writ of habeas corpus because it contains a
claim that was not properly exhausted with the state courts.
A state prisoner seeking federal habeas relief is required to 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); See also Foster v. Withrow,
159 F. Supp. 2d 629, 638 (E.D. Mich. 2001). Although not jurisdictional, exhaustion “is
a threshold question that must be resolved” before a federal court can reach the merits of
any claim contained in a habeas petition. See Wagner v. Smith, 581 F. 3d 410, 415 (6th
Cir. 2009). Therefore, each claim must be reviewed by a federal court for exhaustion
before any claim may be reviewed on the merits by a federal court. Id. 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)(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.
2

2003); 28 U.S.C. § 2254(b)(3). A habeas petitioner has the burden of proving that he or
she exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir.
1994).
Petitioner admits raising his ineffective assistance of appellate counsel claim only
for the first time in his application for leave to appeal before the Michigan Supreme
Court. 1 Petitioner’s claim of ineffective assistance of appellate counsel is subject to the
exhaustion requirement. See Baldwin v. Reese, 541 U.S. 27, 30-33 (2004). Raising a
claim for the first time before the state courts on discretionary review does not amount to
a “fair presentation” of the claim to the state courts for exhaustion purposes. See Castille
v. Peoples, 489 U.S. 346, 351 (1989). Petitioner failed to present his ineffective
assistance of appellate counsel claim on his direct appeal with the Michigan Court of
Appeals; his subsequent presentation of the claim to the Michigan Supreme Court does
not satisfy the exhaustion requirement for habeas purposes. See Skinner v. McLemore,
425 F. App’x. 491, 494 (6th Cir. 2011); Farley v. Lafler, 193 F. App’x. 543, 549 (6th Cir.
2006).
Petitioner has an available state court remedy with which to exhaust his claim.
Petitioner may file a motion for relief from judgment with the trial court under Michigan
Court Rule 6.500 et seq. to exhaust his ineffective assistance of appellate counsel claim

1

See Dkt. # 1, Pg ID 58. Petitioner also admits in his request to expand the record
that he could not raise an ineffective assistance of appellate counsel claim on his direct
appeal. Dkt. # 1, Pg ID 70.
3

and pursue this claim in the state appellate courts as necessary. See Wagner v. Smith, 581
F. 3d at 419; Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002). The
unexhausted claim concerns a matter of federal law which may warrant further review.
This claim should be addressed to and considered by, the state courts in the first instance.
Otherwise, the Court cannot apply the standard found at 28 U.S.C. § 2254.
Although a district court has the discretion to stay a mixed habeas petition
containing both exhausted and unexhausted claims to allow a petitioner to present his or
her unexhausted claims to the state court in the first instance, See Rhines v. Weber, 544
U.S. 269 (2005), there are no exceptional or unusual circumstances present which would
justify holding the instant petition for writ of habeas corpus in abeyance pending
Petitioner’s return to the state courts to exhaust his claim, rather than dismissing it
without prejudice. The Michigan Supreme Court denied Petitioner’s application for leave
to appeal on February 20, 2018. However, the one year statute of limitations under 28
U.S.C. § 2244(d)(1) for filing habeas petitions did not begin to run on that day. Where a
state prisoner has sought direct review of his conviction in the state’s highest court but
does not file a petition for certiorari with the U.S. Supreme Court, the one year limitation
period for seeking habeas review under 28 U.S.C. § 2244(d)(1) begins to run not on the
date that the state court entered judgment against the prisoner, but on the date that the 90
day time period for seeking certiorari with the U.S. Supreme Court expired. See Jimenez
v. Quarterman, 555 U.S. 113, 119 (2009).
Petitioner did not seek a writ of certiorari with the United States Supreme Court.
4

Petitioner’s judgment will become final, for the purpose of commencing the running of
the one year limitations period, on May 21, 2018. See Grayson v. Grayson, 185 F. Supp.
2d 747, 750 (E.D. Mich. 2002).
Petitioner filed the instant petition with this Court on April 20, 2018 before his
conviction became final with the state courts. Moreover, 28 U.S.C. § 2244(d)(2)
expressly provides that the AEDPA’s one year statute of limitations is tolled during the
pendency of any state post-conviction motion. Petitioner has an entire year remaining
under the limitations period, which is tolled during the pendency of Petitioner’s state
post-conviction proceedings; Petitioner will not be prejudiced by the dismissal of his
habeas petition without prejudice while he seeks post-conviction review in the state
courts. 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).
The Court denies the motion for the appointment of counsel. There is no
constitutional right to counsel in habeas proceedings. Cobas v. Burgess, 306 F. 3d 441,
444 (6th Cir. 2002). Petitioner’s claim is unexhausted; he is not entitled to the
appointment of counsel. See e.g. Dupree v. Jones, 281 F. App’x. 559, 561 (7th Cir. 2008).
III. Conclusion
The Court summarily dismisses the petition for writ of habeas corpus without
prejudice.

5

Before Petitioner may appeal the Court’s decision, a certificate of appealability
must issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R.App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a district court denies a
habeas claim on procedural grounds without addressing the merits, a certificate of
appealability should issue if it is shown 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 court was correct in its procedural
ruling. Slack v. McDaniel, 529 U.S. 473, 484–85 (2000).
Having considered the matter, the Court concludes that reasonable jurists could not
debate the correctness of the Court’s procedural ruling. The Court denies a Certificate of
Appealability. The Court also denies Leave to Proceed In Forma Pauperis on Appeal as
an appeal cannot be taken in good faith. Fed. R.App. P. 24(a).
IV. ORDER
The Court SUMMARILY DISMISSES WITHOUT PREJUDICE the Petition
for Writ of Habeas Corpus and DENIES a Certificate of Appealability.
The motion for the appointment of counsel (Dkt. # 3) is DENIED.
Petitioner is DENIED leave to appeal in forma pauperis.

Dated: April 27, 2018

S/Victoria A. Roberts
HON. VICTORIA A. ROBERTS
UNITED STATES DISTRICT JUDGE

6