Wendorf v. MaCauley
Filing
4
OPINION AND ORDER Denying Request to Hold Petition for Writ of Habeas Corpus in Abeyance and Dismissing Petition Without Prejudice. Signed by District Judge David M. Lawson. (SPin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JEFFREY INNES WENDORF,
Petitioner,
Case Number 19-11373
Honorable David M. Lawson
v.
MATTHEW MACAULEY,
Respondent.
/
OPINION AND ORDER DENYING REQUEST TO HOLD
PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE
AND DISMISSING PETITION WITHOUT PREJUDICE
On April 29, 2019, the petitioner, Jeffrey Innes Wendorf, presently confined at the Bellamy
Creek Correctional Facility in Ionia, Michigan, filed his pro se petition for a writ of habeas corpus
under 28 U.S.C. § 2254. In that same filing, he included a request to stay the case and hold the
petition in abeyance. After reviewing the petition, however, it appears that Wendorf has not
exhausted his state court remedies as to any of his claims, which a prisoner must do before applying
to the federal courts for habeas corpus relief. Therefore, the Court will deny the petitioner’s request
to hold his petition in abeyance and dismiss the petition without prejudice.
I.
On November 6, 2016, the petitioner pleaded guilty in the Tuscola County, Michigan
circuit court to unlawful imprisonment, Mich. Comp. Laws § 750.349b, and assault with intent to
do great bodily harm less than murder, Mich. Comp. Laws § 750.84. On April 24, 2017, the state
court imposed a sentence of 16 to 30 years in prison. The Michigan Court of Appeals affirmed
the petitioner’s conviction, People v. Wendorf, No. 342016 (Mich. Ct. App. Mar. 6, 2018). The
petitioner had until May 1, 2018 to file a timely application for leave to appeal to the Michigan
Supreme Court; however, he did not file his application until September 28, 2018. On October 3,
2018, the Michigan Supreme Court denied the application as untimely. The petitioner’s judgment
of conviction therefore became final on May 1, 2018. See Gonzalez v. Thaler, 565 U.S. 134, 154
(2012) (explaining that where petitioners only appeal their convictions to the intermediate
appellate court and fail to properly or timely file an application for leave to appeal to the state’s
highest court, the 90-day period for seeking certiorari from the Supreme Court is not incorporated
in determining when the petitioner’s judgment became final).
On April 29, 2019, the petitioner filed the present habeas corpus petition, raising the
following claims: (1) his plea was involuntary and coerced because he was never informed of the
elements of the crimes; (2) the petitioner was illegally arrested; (3) the petitioner was interrogated
without being advised of his Miranda rights; and (4) his appellate counsel was ineffective for
failing to raise these claims on appeal. Pet. at 3.
The petitioner does not allege that he has exhausted any of his claims. He is critical of his
appellate counsel, asserting that only a claim of perjured testimony by the petitioner’s victim was
presented to the state courts. Pet. at 3. But the petitioner did not attach to his petition any filings
from his state court proceedings that would clarify what claims were raised on appeal. Nor is the
Court in possession of the Michigan Court of Appeals’s decision affirming the petitioner’s
conviction. Based on the record before the Court, it does not appear that the petitioner presented
to the state courts any of the claims in his habeas petition. The petitioner notes that he has not
filed a motion for relief from judgment under Subchapter 6.500 of the Michigan Court Rules. Pet.
at 6. He nevertheless filed his petition under section 2254 as the limitations period was set to
expire, noting that “it seems better to be safe than sorry.” Ibid.
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II.
After a petition for habeas corpus is filed, the Court must undertake a preliminary review
of the petition to determine whether “it plainly appears from the face of the petition and any
exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules
Governing § 2254 Cases; see also 28 U.S.C. § 2243. If, after preliminary consideration, the Court
determines that the petitioner is not entitled to relief, the Court must summarily dismiss the
petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) (“Federal courts are authorized to dismiss
summarily any habeas petition that appears legally insufficient on its face.”). The petition contains
only unexhausted claims; it therefore will be dismissed.
The doctrine of exhaustion of state remedies requires state prisoners to “fairly present’ their
claims as federal constitutional issues in the state courts before raising those claims in a federal
habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A), (c); O’Sullivan v. Boerckel, 526 U.S. 838,
844 (1999); McMeans v. Brigano, 228 F.3d 674, 680-81 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994). The exhaustion requirement is satisfied if a prisoner invokes one complete
round of the state’s established appellate review process, including a petition for discretionary
review to a state supreme court. See O’Sullivan, 526 U.S. at 845, 847. A prisoner “‘fairly presents’
his claim to the state courts by citing a portion of the Constitution, federal decisions using
constitutional analysis, or state decisions employing constitutional analysis in similar fact
patterns.” Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993); see also Prather v. Rees, 822
F.2d 1418, 1420 (6th Cir. 1987) (“Ordinarily, the state courts must have had the opportunity to
pass on defendant’s claims of constitutional violations”). A Michigan petitioner must present each
ground to both Michigan appellate courts before seeking federal habeas corpus relief. Wagner v.
Smith, 581 F.3d 410, 414 (6th Cir. 2009); Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich.
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2002); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The petitioner bears the
burden of showing that his state court remedies have been exhausted. Rust, 17 F.3d at 160.
Here the petitioner has failed to satisfy his burden of showing exhaustion of state court
remedies as his petition raises claims that apparently have not been presented to the state courts.
A prisoner is required to comply with this exhaustion requirement as long as there is a state-court
procedure available for him to do so. See Adams v. Holland, 330 F.3d 398, 401 (6th Cir. 2003).
The Michigan Court Rules provide a process by which the petitioner may raise his unexhausted
claims. The petitioner may file a motion for relief from judgment under Subchapter 6.500 of the
Michigan Court Rules, which allows the trial court to appoint counsel, seek a response from the
prosecutor, expand the record, permit oral argument, and conduct an evidentiary hearing on the
petitioner’s claim. The petitioner may appeal the trial court’s disposition of his motion for relief
from judgment to the Michigan Court of Appeals and the Michigan Supreme Court, and he may
thereafter file a petition for writ of certiorari in the United States Supreme Court. To obtain relief
in state court, he will have to show cause for failing to raise his unexhausted claims on direct
review and resulting prejudice or a significant possibility of innocence. See Mich. Ct. R.
6.508(D)(3).
Nor has the petitioner presented the Court with a “mixed” petition of exhausted and
unexhausted claims that in “limited circumstances” would justify dismissing the unexhausted
claims, retaining jurisdiction over the exhausted claims, and staying proceedings pending
exhaustion. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (explaining that a stay is available
“when the district court determines there was good cause for the petitioner’s failure to exhaust his
claims first in state court,” the unexhausted claims are not “plainly meritless,” and the petitioner
is not “engage[d] in abusive litigation tactics or intentional delay.”); see also Griffin v. Rogers,
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308 F.3d 647, 652 & 652 n.1 (6th Cir. 2002); Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002)
(finding it “eminently reasonable” to dismiss unexhausted claims in a habeas petition and stay
proceedings on the remaining claims pending exhaustion of state court remedies). In this case,
because the petition contains no exhausted claims over which the Court may retain jurisdiction,
the Court will deny the request to hold the petition in abeyance and dismiss the petition so that the
petitioner may pursue relief in the state court.
III.
The claims raised in the habeas petition are unexhausted. Therefore, the petitioner’s claims
do not present grounds upon which this Court may grant habeas relief at this time. The request to
hold the petition in abeyance will be denied, and the petition will be dismissed without prejudice.
Accordingly, it is ORDERED that the petitioner’s motion to hold the petition in abeyance
(ECF No. 1) is DENIED.
It is further ORDERED that the petition for writ of habeas corpus is DISMISSED
WITHOUT PREJUDICE.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Date: August 13, 2019
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was
served upon each attorney or party of record herein by
electronic means or first class U.S. mail on August 13, 2019.
s/Susan K. Pinkowski
SUSAN K. PINKOWSKI
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