White v. Winn

Filing 6

ORDER DIRECTING PETITIONER TO INFORM THE COURT HOW HE WANTS TO PROCEED WITH HIS MIXED PETITION Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

RAKESK DEWAYNE WHITE,
Petitioner,
Case No. 2:18-cv-11582
Hon. Avern Cohn

v.
TOM WINN,
Respondent.
_____________________________/

ORDER DIRECTING PETITIONER TO INFORM THE COURT
HOW HE WANTS TO PROCEED WITH HIS “MIXED” PETITION
I. Introduction
This is a pro se habeas corpus case under 28 U.S.C. § 2254. Petitioner Rakesk
Dewayne White was convicted of two counts of first-degree murder, Mich. Comp. Laws
§ 750.316(1)(a), three counts of assault with intent to commit murder, Mich. Comp.
Laws § 750.83, one count of possession of a firearm by a felon, Mich. Comp. Laws §
750.224f, and one count of possession of a firearm during the commission of a felony,
Mich. Comp. Laws § 750.227b. Petitioner is serving a life sentence without the
possibility of parole for the murder conviction and lesser terms of imprisonment for the
other convictions. The Michigan Court of Appeals affirmed his convictions in an appeal
of right, see People v. White, No. 326701, 2016 WL 4008532 (Mich. Ct. App. July 26,
2016), and on November 30, 2016, the Michigan Supreme Court denied leave to
appeal. See People v. White, 887 N.W.2d 624 (Mich. 2016), reconsideration denied,
895 N.W.2d 183 (Mich. 2017).

Petitioner filed his habeas petition in the United States District Court for the
Western District of Michigan on April 27, 2018, and on May 21, 2018, United States
Magistrate Judge Phillip J. Green transferred the case to this District because venue is
proper here. In his habeas petition, Petitioner alleges as grounds for relief that he was
denied his constitutional right to effective assistance of counsel under the Sixth
Amendment when his trial attorney (1) failed to subpoena Investigator Gerald Borycz,
(2) failed to impeach prosecution witness Eric Bowler regarding his interaction with
Investigator Borycz, and (3) failed to interview and subpoena prosecution witness
Terrloyn Parham. In a fourth claim, Petitioner contends that his appellate attorney also
was ineffective, because the attorney failed to file Petitioner’s pro se brief, as promised.
Because Petitioner does not appear to have exhausted state remedies for all these
claims, the Court will direct him to inform the Court how he wants to proceed.
II. Analysis
The doctrine of exhaustion of state remedies requires state prisoners to present
their claims to the state courts before raising their claims in a federal habeas corpus
petition. See 28 U.S.C. § 2254(b)(1), (c); 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.” O’Sullivan, 526 U.S. at 845. 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 claims in a habeas corpus petition. Wagner v. Smith, 581 F.3d
410, 414-15 (6th Cir. 2009).
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Petitioner alleges that he raised his first and second claims on appeal from his
conviction, but he admits that he did not raise his third claim on direct appeal. See Pet.,
pp. 6-7, 9, ECF No.1, PageID. 6, 8, 11. In addition, although Petitioner claims that he
raised his fourth claim on appeal, see id., p. 10, PageID. 13, it does not appear that he
raised the claim in the Michigan Court of Appeals, see White, 2016 WL 4008532. The
Court therefore concludes that the petition is a “mixed” petition of exhausted and
unexhausted claims.
“A federal district court, generally speaking, may not grant the writ on a ‘mixed’
petition, one containing claims that the petitioner has pressed before the state courts
and claims that he has not.” Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009) (citing
28 U.S.C. § 2254(b)(1)(A) and Rhines v. Weber, 544 U.S. 269, 273-74 (2005)); see also
Rose v. Lundy, 455 U.S. 509, 510 (1982) (noting that “the exhaustion rule in 28 U.S.C.
§§ 2254(b), (c) requires a federal district court to dismiss a petition for a writ of habeas
corpus containing any claims that have not been exhausted in the state court,” and
holding “that a district court must dismiss ‘mixed petitions,’ leaving the prisoner with the
choice of returning to state court to exhaust his claims or of amending or resubmitting
the habeas petition to present only exhausted claims to the district court”).
Furthermore, Petitioner has an available state remedy to exhaust: a motion for relief
from judgment under Michigan Court Rule 6.502 and an appeal from any denial of the
post-conviction motion.
When faced with a mixed petition , . . . the district court has four options:
(1) stay the entire petition; (2) dismiss the entire petition without prejudice;
(3) deny the entire petition on the merits; or (4) dismiss the unexhausted
claims and proceed with the exhausted ones.
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Swanson v. DeSantis, 606 F.3d 829, 831 (6th Cir. 2010) (citing Harris, 553 F.3d at
1031-32).
The Court assumes that Petitioner does not want the Court to dismiss his entire
petition on the merits (option three). Accordingly, the Court ORDERS Petitioner to
inform the Court within thirty (30) days of the date of this order whether he wants the
Court to:
stay his petition (option one);
dismiss the entire petition without prejudice (option two); or
dismiss his unexhausted claims and proceed with only his exhausted ones
(option four).
The Court declines to say whether any of Petitioner’s claims would be timebarred if Petitioner chose to return to state court to pursue additional state-court
remedies.
SO ORDERED.

s/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 8/15/2018

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