Dickey v. Christiansen

Filing 6

OPINION and ORDER DISMISSING WITHOUT PREJUDICE the petition for a writ of habeas corpus 1 and DENYING the motion to stay the proceedings 4 . The Court DENIES a certificate of appealability. The Court denies leave to proceed in forma pauperis on appeal. Signed by District Judge Arthur J. Tarnow. (McColley, N)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TONEY GOVNER DICKEY,
Petitioner,
CASE NO. 2:21-CV-11566
HON. ARTHUR J. TARNOW

v.
JOHN CHRISTIANSEN,
Respondent.
_____________________________/

OPINION & ORDER DISMISSING WITHOUT PREJUDICE THE
HABEAS PETITION, DENYING THE MOTION TO STAY,
DENYING A CERTIFICATE OF APPEALABILITY, &
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

Introduction
This is a pro se habeas case brought pursuant to 28 U.S.C. § 2254. Michigan

prisoner Toney Govner Dickey (“Petitioner”) was convicted of
delivery/manufacture of less than 50 grams of narcotics pursuant to a plea in the
Monroe County Circuit Court and was sentenced to 10 to 20 years imprisonment in
2018. ECF No. 1, PageID.2. In his habeas petition, he raises claims concerning
the proportionality of his sentence, the accuracy of sentencing information, and the

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trial court’s jurisdiction to sentence him (alleging that his probation had ended).
Id. at PageID.5, 6. At the time Petitioner instituted this action, he also filed a
motion to stay the proceedings so that he can return to the state courts to exhaust
available remedies as to his last claim. For the reasons stated herein, the Court
dismisses without prejudice the habeas petition, denies the motion to stay, denies a
certificate of appealability, and denies leave to proceed in forma pauperis on
appeal.
II.

Procedural History
Following sentencing, Petitioner filed a delayed application for leave to

appeal with the Michigan Court of Appeals raising claims concerning the
proportionality of his sentence and the accuracy of sentencing information, which
was denied for lack of merit in the grounds presented. ECF No. 1, PageID.3;
People v. Dickey, No. 348113 (Mich. Ct. App. May 1, 2019). Petitioner then filed
an application for leave to appeal with the Michigan Supreme Court raising those
same claims, which was denied in a standard order. Id.; People v. Dickey, 505
Mich. 1015, 940 N.W.2d 116 (March 27, 2020).
Petitioner states that he filed a motion for relief from judgment with the state
trial court on June 19, 2020, raising claims concerning the trial court’s jurisdiction

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to sentence him (because his probation had ended) and the effectiveness of trial
and appellate counsel relative to that issue, which remains pending. ECF No. 1;
PageId.4.
Petitioner dated his federal habeas petition on June 23, 2021.
III.

Discussion
Promptly after the filing of a habeas petition, 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; 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.
Id., Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to
“screen out” petitions that lack merit on their face).
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) (“state prisoners must give the state courts one full fair
opportunity to resolve any constitutional issues by invoking one complete round of
the State's established appellate review process”); Rust v. Zent, 17 F.3d 155, 160

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(6th Cir. 1994). To satisfy this requirement, the claims must be “fairly presented”
to the state courts, meaning that the prisoner must have asserted both the factual
and legal bases for the claims in the state courts. McMeans v. Brigano, 228 F.3d
674, 681 (6th Cir. 2000); see also Williams v. Anderson, 460 F.3d 789, 806 (6th
Cir. 2006) (citing McMeans). The claims must also be presented to the state courts
as federal constitutional issues. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir.
1984). A Michigan prisoner must properly present each issue he seeks to raise in a
federal habeas proceeding 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); see also Hafley v. Sowders, 902 F.2d
480, 483 (6th Cir. 1990). While the exhaustion requirement is not jurisdictional, a
“strong presumption” exists that a petitioner must exhaust all available state
remedies before seeking federal habeas review. Granberry v. Greer, 481 U.S. 129,
131, 134-35 (1987). The burden is on the petitioner to prove exhaustion. Rust, 17
F.3d at 160.
In this case, Petitioner admits that he has not exhausted his third habeas
claim in the state courts and informs the Court that he has a motion for relief from
judgment pending in the state trial court concerning such issues. Petitioner must

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complete the state court process by awaiting the trial court’s decision and then
pursuing an appeal in the state appellate courts as necessary. Federal law provides
that a habeas petitioner is only entitled to relief if he can show that the state court
adjudication of his claims resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal law as determined by
the Supreme Court of the United States. 28 U.S.C. § 2254(d). The state courts
must first be given a fair opportunity to rule upon all of Petitioner’s claims before
he can present them in federal court. Otherwise, this Court cannot apply the
standard found at 28 U.S.C. § 2254.
An exception to the exhaustion requirement exists only if there is no
opportunity to obtain relief in the state courts or if the corrective process is so
clearly deficient as to render futile any effort to obtain relief in the state courts.
Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Sitto v. Bock, 207 F. Supp. 2d 668,
676 (E.D. Mich. 2002). The Court recognizes that an inordinate delay in
adjudicating state court claims may be a circumstance which would excuse the
exhaustion of state court remedies, especially when the State is responsible for the
delay. See Workman v. Tate, 957 F. 2d 1339, 1344 (6th Cir. 1992). Additionally,
a habeas petitioner who makes “frequent but unavailing requests to have his appeal

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processed” in the state courts should not be “not required to take further futile steps
in state court in order to be heard in federal court,” even if the state court
subsequently decides his appeal. Turner v. Bagley, 401 F. 3d 718, 726 (6th Cir.
2005).
Petitioner, however, neither alleges nor establishes that there has been an
inordinate delay in deciding his motion for relief from judgment. While the
motion has been pending in the state trial court for about a year, such a delay in
resolving a post-conviction motion is not excessive, particularly given the COVID19 pandemic which has created a backlog in state and federal courts. Cf.
Workman, 957 F.3d at 1344 (excusing three-year delay); Turner, 401 F.3d at 72526 (extenuating circumstances and 11-year delay in deciding appeal). Petitioner
also fails to show that he made any, let alone “frequent, but unavailing,” requests
to have his motion decided. Petitioner could also seek an order of superintending
control from the Michigan Court of Appeals pursuant to Mich. Ct. R. 3.302 (D)(1)
and Mich. Ct. R. 7.203 (C)(1) to order the state trial court to decide his motion. If
the Michigan Court of Appeals failed to do so, he could seek an order of
superintending control from the Michigan Supreme Court pursuant to Mich. Ct. R.
7.306. Because Petitioner has not sought relief from the Michigan appellate courts

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to compel the trial court to decide his motion, he is not excused from exhausting
his claims in the state courts. See Johnson v. Bauman, No. 2:19-CV-12423, 2020
WL 5819567, *2-3 (E.D. Mich. Sept. 30, 2020) (citing cases); Scott v. Woods, No.
2:15-CV-13095, 2016 WL 1554934, *3 (E.D. Mich. April 18, 2016); Washington
v. Warden, Ross Corr, Inst., No. 02-70096, 2003 WL 1867914, *3 (E.D. Mich.
March 21, 2003) (Tarnow, J.). Petitioner’s failure to pursue his claims in state
court “disqualifies his case from consideration under the narrow exception [to the
exhaustion requirement].” Dillon v. Hutchinson, 82 F. App’x 459, 462 (6th Cir.
2003). He must complete the state court process before seeking federal habeas
review.
A federal court has discretion to stay a mixed habeas petition, containing
both exhausted and unexhausted claims, to allow a petitioner to present the
unexhausted claims to the state courts first and then return to federal court on a
perfected petition. Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and abeyance
is available only in “limited circumstances” such as when the one-year statute of
limitations applicable to federal habeas actions poses a concern, and when the
petitioner demonstrates “good cause” for the failure to exhaust state court remedies
before proceeding in federal court and the unexhausted claims are not “plainly

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meritless.” Id. at 277.
In Rhines, the Supreme Court adopted the stay and abeyance procedure to
specifically address when an outright dismissal of a habeas petition could
jeopardize the timeliness of a future petition after the exhaustion of state remedies.
Id. at 275 (noting that if the court dismissed the habeas petition “close to the end of
the 1-year period, the petitioner’s chances of exhausting his claims in state court
and refiling in federal court before the limitation period [expired would be] slim”).
Thus, stay and abeyance is generally reserved for those cases where the AEDPA’s
one-year limitations period is likely to expire before a habeas petitioner can return
to state court to exhaust additional claims and then return to federal court on an
amended petition. See Moss v. Hofbauer, No. 07-10687, 2007 WL 317968, *2-3
(E.D. Mich. Oct. 16, 2007).
In this case, a stay is unnecessary because the one-year statute of limitations
applicable to federal habeas actions, see 28 U.S.C. § 2244(d), does not pose a
concern. The one-year period for Petitioner would not begin to run until 90 days
after the conclusion of direct appeal, see Lawrence v. Florida, 549 U.S. 327, 333
(2007); Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir. 2000); S. Ct. R. 13, on or
about June 25, 2020. Petitioner states that he filed his motion for relief from

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judgment with the state trial court on June 19, 2020. Thus, the limitations period
did not begin to run before he sought state collateral review. The one-year period
is then tolled while any properly filed state post-conviction or collateral actions are
pending. See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-221
(2002). Given that the full year of the one-year limitations period remains,
Petitioner has ample time to complete the state court process and return to federal
court on a perfected petition should he wish to do so. A stay is unnecessary.
Furthermore, it is inappropriate for Petitioner to challenge the same criminal
conviction and sentence in state court and federal court at the same time. See, e.g.,
Carter v. Balcarcel, No. 3:18-CV-10618, 2018 WL 1586488, *2 (E.D. Mich. April
2, 2018) (dismissing habeas petition without prejudice where state prisoner had a
motion for relief from judgment pending in state court); Gilmore v. Burton, No.
16-CV-14512, 2017 WL 2062222, *2 (E.D. Mich. May 15, 2017 (stating that “it is
inappropriate for the petitioner to challenge the same criminal convictions and
sentences in state court and federal court at the same time” and dismissing habeas
petition without prejudice where state prisoner had additional claims pending in
state court); Robinson v. Gidley, No. 2:15-CV-10572, 2015 WL 1120118, *2 (E.D.
Mich. March 11, 2015) (citing cases and dismissing habeas petition without

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prejudice where state prisoner had a pending state habeas action). Petitioner must
complete the state court process before seeking habeas relief in federal court.
Witzke v. Bell, No. 07-CV-15315, 2007 WL 4557674 (E.D. Mich. Dec. 20, 2007);
Harris v. Prelisnik, No. 06-CV-15472, 2006 WL 3759945 (E.D. Mich. Dec. 20,
2006).
Lastly, while Petitioner’s pending state collateral review proceedings may
not involve all of his current habeas claims, those proceedings may result in the
reversal of his conviction or sentence on another ground, thereby mooting the
federal questions presented. See Humphrey v. Scutt, No. 08-CV-14605, 2008 WL
4858091, *1 (E.D. Mich. Nov. 5, 2008) (citing cases); Szymanski v. Martin, 99CV-76196-DT, 2000 WL 654916 (E.D. Mich. April 13, 2000). The interests of
comity, efficiency, and justice are best served by a non-prejudicial dismissal of the
habeas petition.
IV.

Conclusion
Accordingly, for the reasons stated, the Court DISMISSES WITHOUT

PREJUDICE the petition for a writ of habeas corpus and DENIES the motion to
stay the proceedings.
Before Petitioner may appeal, a certificate of appealability must issue. See

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28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability
may issue only if a habeas petitioner makes “a substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on
procedural grounds, 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). Reasonable jurists could not debate the
correctness of the Court’s procedural ruling. Accordingly, the Court DENIES a
certificate of appealability.
Lastly, the Court concludes that appeal from this decision cannot be taken in
good faith. See Fed. R. App. P. 24(a). Accordingly, the Court denies leave to
proceed in forma pauperis on appeal.
IT IS SO ORDERED.
_s/Arthur J. Tarnow________
ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
Dated: July 19, 2021