Irvin v. Winn
Filing
4
OPINION and ORDER Dismissing the 1 Petition for Writ of Habeas Corpus Without Prejudice, Denying a Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Linda V. Parker. (Loury, R)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROYALE LAMPTON IRVIN, #364863,
Petitioner,
Civil Case No. 4:14-CV-13783
Honorable Linda V. Parker
v.
THOMAS WINN,
Respondent.
__________________________________/
OPINION & ORDER DISMISSING THE PETITION FOR A WRIT OF
HABEAS CORPUS WITHOUT PREJUDICE, DENYING A CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
I.
Introduction
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Following a
jury trial in the Circuit Court for Wayne County, Michigan, Petitioner Royale
Lampton Irvin (“Petitioner”) was convicted of second-degree murder in violation
of Michigan Compiled Laws § 750.317, and possession of a firearm during the
commission of a felony, second offense, in violation of Michigan Compiled Laws
§ 750.227b. In 2011, he was sentenced to consecutive prison terms of 35 to 70
years and five years on those convictions. In his petition, he raises claims
concerning the admission of text messages at trial, an upward sentencing departure,
the late appointment of preliminary examination counsel, and the constructive
denial/ineffectiveness of trial counsel. For the reasons set forth, the Court
dismisses without prejudice the petition for a writ of habeas corpus. The Court
also denies Petitioner a certificate of appealability and leave to proceed in forma
pauperis on appeal.
II.
Analysis
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
(6th Cir. 1994). To satisfy the exhaustion requirement, the claims must be “fairly
presented” to the state courts, meaning that the petitioner 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 also must be presented to the
state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d 365, 368
(6th Cir. 1984). In Michigan, each issue must be presented to both the Michigan
Court of Appeals and the Michigan Supreme Court to satisfy the exhaustion
2
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). The burden is on the
petitioner to prove exhaustion. Rust, 17 F.3d at 160.
Petitioner admits that he has not fully exhausted state court remedies as to all
of his claims. Petitioner states that he presented his first three habeas claims
(concerning the admission of text messages, an upward sentencing departure, and
the late appointment of preliminary examination counsel) to the state courts on
direct appeal of his convictions, but has not yet presented his fourth habeas claim
(concerning the constructive denial/ineffectiveness of trial counsel) to the state
courts for review. Petitioner indicates that he intends to file a motion for relief
from judgment with the state trial court, but has not yet done so. Petitioner has
thus failed to properly exhaust all of his claims in the state courts before
proceeding on federal habeas review.
Generally, a federal district court should dismiss a “mixed” habeas petition,
that is, one containing both exhausted and unexhausted claims, “leaving the
prisoner with the choice of returning to state court to exhaust his claims or
amending and resubmitting the habeas petition to present only exhausted claims to
the district court.” Rose v. Lundy, 455 U.S. 509, 510 (1982); see also Rust, 17 F.3d
at 160. While the exhaustion requirement is strictly enforced, it is not a
3
jurisdictional prerequisite for bringing a habeas petition. Granberry v. Greer, 481
U.S. 129, 134-35 (1987). For example, an unexhausted claim may be addressed if
pursuit of state court remedies would be futile, Witzke v. Withrow, 702 F. Supp.
1338, 1348 (W.D. Mich. 1988), or if the unexhausted claim is meritless such that
addressing it would be efficient and not offend federal-state comity. Prather v.
Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); see also 28 U.S.C. § 2254(b)(2)
(habeas petition may be denied on the merits despite the failure to exhaust state
remedies). Additionally, a federal court has discretion to stay a mixed habeas
petition to allow a petitioner to present his unexhausted claims to the state courts in
the first instance and then return to federal court on a perfected petition. Rhines v.
Weber, 544 U.S. 269, 276 (2005). Stay and abeyance, however, is available only
in “limited circumstances” such as where the one-year statute of limitations
applicable to federal habeas actions poses a concern, and the petitioner
demonstrates “good cause” for the failure to exhaust state court remedies before
proceeding in federal court, there is no evidence of intentional delay, and the
unexhausted claims are not “plainly meritless.” Id. at 277. Petitioner has not
shown the need for a stay.
First, the one-year statute of limitations, see 28 U.S.C. § 2244(d), does not
pose a problem for Petitioner provided he promptly pursues his state court
4
remedies. The Michigan Supreme Court denied Petitioner leave to appeal on May
27, 2014. People v. Irvin, 846 N.W.2d 397 (2014). The one-year limitations
period did not begin to run until ninety days later (i.e., on August 25, 2014). See
Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009); Lawrence v. Florida, 549
U.S. 327, 333 (2007); S. Ct. R. 13(1). Petitioner dated his federal habeas petition
on September 25, 2014. Thus, only one month of the one-year period had run
when Petitioner instituted this action. While the time in which a habeas case is
pending in federal court is not statutorily tolled, see Duncan v. Walker, 533 U.S.
167, 181-82 (2001), such time is equitably tolled by the courts. See Johnson v.
Warren, 344 F. Supp. 2d 1081, 1088-89 (E.D. Mich. 2004). Petitioner thus has
sufficient time, about eleven months, to seek collateral review of his unexhausted
claim in the state courts (thereby tolling the one-year period) and return to federal
court on a perfected petition.
Second, while there is no indication that Petitioner has engaged in
“intentionally dilatory tactics,” he has not shown good cause for failing to fully
exhaust all of his claims in the state courts before seeking relief in federal court.
While Petitioner may have discovered new issues in reviewing the state court
record, he offers no reason for failing to pursue such matters on collateral review in
the state courts before filing his habeas petition. Third, Petitioner’s unexhausted
5
claim concerns a matter of federal law which does not appear to be “plainly
meritless.” Given such circumstances, a stay is unwarranted and a non-prejudicial
dismissal of the petition is appropriate.
Accordingly,
The Court concludes that Petitioner has not exhausted available state court
remedies as to all of his habeas claims and is DISMISSING WITHOUT
PREJUDICE his petition for a writ of habeas corpus. Should Petitioner wish to
delete the unexhausted claim and proceed only on the fully exhausted claims,
within thirty (30) days of the filing date of this Order, he shall move to re-open this
case and amend his petition to proceed only on the exhausted claims. The Court
makes no determination as to the merits of his claims.
Before Petitioner may appeal the Court’s decision, a certificate of
appealability must issue. See 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
federal court denies relief 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
6
court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 48485 (2000). Reasonable jurists could not debate the correctness of the Court’s
procedural ruling that the claims in the petition are not fully exhausted and that the
petition should be dismissed. Accordingly, 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. See Fed. R. App. P. 24(a).
IT IS SO ORDERED.
S/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: October 28, 2014
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, October 28, 2014, by electronic and/or
U.S. First Class mail.
S/ Richard Loury
Case Manager
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?