Traxler v. Haas

Filing 5

OPINION and ORDER Summarily Dismissing Without Prejudice The 1 Petition for Writ of Habeas Corpus, Declining to Issue a Certificate of Appealability, and Denying Petitioner Leave to Appeal In Forma Pauperis. Signed by District Judge Linda V. Parker. (Loury, R)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JAMES TRAXLER,
Petitioner,

Civil Case No. 4:15-cv-10995
Honorable Linda V. Parker

v.
RANDALL HAAS,
Respondent.
___________________________________/
OPINION AND ORDER SUMMARILY DISMISSING WITHOUT
PREJUDICE THE PETITION FOR WRIT OF HABEAS CORPUS,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND
DENYING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner James Traxler (“Petitioner”), confined at the Macomb
Correctional Facility in New Haven, Michigan, has filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his
convictions in the Circuit Court for Newaygo County, Michigan for second-degree
murder in violation of Michigan Compiled Laws Section 750.317, and felonyfirearm in violation of Michigan Compiled Laws Section 750.227b. For the
reasons that follow, the Court is summarily dismissing the petition without
prejudice.

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I.

Background
Petitioner was convicted of the above offenses in September 2012, following

a jury trial. Petitioner filed an appeal of right with the Michigan Court of Appeals,
claiming that the trial court erred in permitting expert testimony in the area of
competency and mental illness where the testimony did not meet the requirements
of Michigan Rule of Evidence 702 and that trial counsel was ineffective for failing
to move for the exclusion of this testimony. The Michigan Court of Appeals
affirmed Petitioner’s convictions. People v. Traxler, No. 314951, 2014 WL
2934293 (Mich. Ct. App. June 26, 2014).
Petitioner filed an application for leave to appeal to the Michigan Supreme
Court. In addition to the claims raised before the Michigan Court of Appeals,
Petitioner asserted for the first time that he was deprived of the right to present a
defense and the effective assistance of counsel when Petitioner’s trial counsel
failed to raise self-defense at trial. The Michigan Supreme Court granted
Petitioner permission to add his self-defense claims to his application for leave to
appeal, but then denied Petitioner leave to appeal on February 3, 2015. People v.
Traxler, 858 N.W.2d 452 (Mich. 2015) (Table).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The trial court erred in allowing “expert” witness testimony in the
area of competency and mental illness where the testimony did not
meet the requirements of Michigan Rule of Evidence 702.

II. Defendant was denied his constitutional right to effective
assistance of counsel and is thus entitled to a new trial because
defense counsel failed to move to exclude expert testimony that did
not meet the requirements of MRE 702, and had the testimony been
excluded it is reasonably probable that the results of the trial would
have been different.
III. Mr. Traxler was deprived of the right to present a defense and the
effective assistance of counsel when trial defense counsel failed to
raise the defense of self-defense.
II.

Discussion
As a general rule, a state prisoner seeking federal habeas relief must first

exhaust his available state court remedies before raising a claim in federal court.
28 U.S.C. § 2254(b), (c); Picard v. Connor, 404 U.S. 270, 275-78 (1971).
Although exhaustion is not a jurisdictional matter, “it is a threshold question that
must be resolved” before a federal court can reach the merits of any claim
contained in a habeas petition. Wagner v. Smith, 581 F.3d 410, 415 (6th Cir.
2009). Therefore, a federal habeas court must review each claim for exhaustion
before any claim may be reviewed on the merits. Id. The court generally must
dismiss a petition containing both exhausted and unexhausted claims. Pliler v.
Ford, 542 U.S. 225, 230 (2004) (citing Rose v. Lundy, 455 U.S. 509, 510, 522
(1982)). The exhaustion requirement is satisfied if a prisoner invokes one
complete round of the State’s established appellate review process. O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999). This means that state prisoners in Michigan
must present their habeas claims to the Michigan Court of Appeals and the
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Michigan Supreme Court before they can raise them in a federal habeas corpus
petition. See Sanders v. McKee, 276 F. Supp. 2d 691, 693 (E.D. Mich. 2003).
A habeas petitioner has the burden of proving his exhaustion of available
state court remedies. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The failure to
exhaust those remedies may be raised sua sponte by the federal habeas court.
Eakes v. Sexton, 592 F. App’x 422, 430-31 (6th Cir. 2014).
The present petition is subject to dismissal because it contains unexhausted
claims. Petitioner specifically indicates that he first raised his third claim alleging
that trial counsel was ineffective for failing to raise a self-defense claim only when
seeking leave to appeal before the Michigan Supreme Court. “The general rule in
the federal habeas context is that the submission of new claims to a state’s highest
court on discretionary review does not constitute fair presentation of the claims to
the state courts.” Skinner v. McLemore, 425 F. App’x 491, 494 (6th Cir. 2011)
(citing Castille v. Peoples, 489 U.S. 346, 349 (1989)).
Although Petitioner raised an ineffective assistance of trial counsel claim on
direct appeal involving counsel’s failure to object to the admission of expert
testimony, this was different than the ineffective assistance of counsel claim he
raised for the first time with the Michigan Supreme Court. A habeas petitioner is
required to present to the state courts “ ‘the same specific claims of ineffective
assistance [of counsel] made out in the habeas petition.’ ” Wyldes v. Hundley, 69
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F.3d 247, 253 (8th Cir. 1995) (quoting Tippitt v. Lockhart, 903 F.2d 552, 554 (8th
Cir. 1990)); see also Caver v. Straub, 349 F.3d 340, 346-47 (6th Cir. 2003)
(quoting Pillette v. Foltz, 824 F. 2d 494, 497 (6th Cir. 1987) (“Fair presentation . . .
requires that ‘the same claim under the same theory be presented’ for the state
court’s consideration. . . . Thus, to the extent that an ineffective assistance of
counsel claim is based upon a different allegedly ineffective action than the claim
presented to the state courts, the claim has not been fairly presented to the state
courts.”). Therefore, because Petitioner failed to present his third claim in his
direct appeal to the Michigan Court of Appeals, his subsequent presentation of the
claim to the Michigan Supreme Court failed to satisfy the exhaustion requirement
for habeas purposes and the claim is unexhausted.
Petitioner has an available state court remedy to exhaust his third claim. He
may file a motion for relief from judgment with the trial court under Michigan
Court Rule 6.500 et seq.
As indicated, the Supreme Court directed district courts to dismiss mixed
petitions without prejudice in Rose v. Lundy, 455 U.S. at 522. However, with the
amendment of the habeas statute to impose a one-year statute of limitations on
habeas claims, see 28 U.S.C. § 2244(d)(1), dismissal without prejudice often
effectively precludes future federal habeas review. As a result, the Sixth Circuit
has adopted a stay-and-abeyance procedure to be applied to mixed petitions when
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the dismissal of the mixed petition could jeopardize the timeliness of a subsequent
petition. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002) see also Rhines
v. Weber, 544 U.S. 269, 277 (2007) (approving stay-and-abeyance procedure);
Griffin v. Rogers, 308 F.3d 647, 652 n. 1 (6th Cir. 2002). In Palmer, the court
directed district courts to dismiss only the unexhausted claims and stay further
proceedings on the exhausted claims until the petitioner has exhausted his claims
in the state court. Id. Moreover, the Supreme Court has instructed that stay and
abeyance should be employed only where the “petitioner had good cause for his
failure to exhaust, his unexhausted claims are potentially meritorious, and there is
no indication that the petitioner engaged in intentionally dilatory litigation tactics.”
Rhines, 544 U.S. at 278. The Court finds it unnecessary to address these latter
requirements because the statute of limitations does not pose a problem for
Petitioner and thus his petition should be dismissed without prejudice.
The Michigan Supreme Court denied Petitioner’s application for leave to
appeal on February 3, 2015. Petitioner did not submit a petition for writ of
certiorari in the United States Supreme Court. The AEDPA’s one year limitations
period therefore did not begin to run until the ninety-day period for seeking
certiorari expired. See Jimenez v. Quarterman, 555 U.S. 113, 119 (2009). Thus
the one year limitations period did not begin to run until May 5, 2015.

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Petitioner filed the instant petition with this Court on March 11, 2015, before
his conviction even became final in the state courts.1 Moreover, 28 U.S.C.
§ 244(d)(2) expressly provides that the AEDPA’s one year limitations period is
tolled during the pendency of any state post-conviction motion filed by Petitioner.
Thus because Petitioner has an entire year remaining under the limitations period,
and any unexpired portion of that period will be tolled during the pendency of any
state post-conviction proceedings, Petitioner would not be prejudiced if his habeas
petition is dismissed without prejudice to allow him to exhaust his third claim.
Thus a stay of the proceedings is not necessary or appropriate to preserve the
federal forum for Petitioner’s claims.
III.

Conclusion
For the above stated reasons, the Court is summarily dismissing the petition

for writ of habeas corpus without prejudice. The Court also is denying Petitioner a
certificate of appealability with respect to this decision.
“The district court must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254. In order to obtain a certificate of appealability, a
prisoner must make a substantial showing of the denial of a constitutional right. 28

Under the prison mailbox rule, the Court assumes that Petitioner actually filed his
habeas petition on March 11, 2015, the date that it was signed and dated. See
Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999).
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U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show
that reasonable jurists could debate whether, or agree that, the petition should have
been resolved in a different manner, or that the issues presented were adequate to
deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 48384 (2000). When a district court denies a habeas petition on procedural grounds
without reaching the prisoner’s underlying constitutional claims, a certificate of
appealability should issue, and an appeal of the district court’s order may be taken,
if the petitioner shows 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 district court was correct in its
procedural ruling. Id. When a plain procedural bar is present and the district court
is correct to invoke it to dispose of the case, a reasonable jurist could not conclude
either that the district court erred in dismissing the petition or that the petition
should be allowed to proceed further. In such a circumstance, no appeal would be
warranted. Id.
Reasonable jurists would not find it debatable whether this Court was correct
in its procedural ruling that Petitioner failed to exhaust an available state court
remedy with respect to his third claim and that dismissal without prejudice is the
appropriate remedy. The Court also is denying Petitioner leave to appeal in forma
pauperis because any appeal would be frivolous.
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Accordingly,
IT IS ORDERED, that Petitioner’s application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DISMISSED WITHOUT PREJUDICE;
IT IS FURTHER ORDERED, that the Court declines to issue a Certificate
of Appealability or leave to appeal in forma pauperis.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: April 13, 2015
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, April 13, 2015, by electronic and/or U.S.
First Class mail.
s/ Richard Loury
Case Manager

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