Cunningham v. Winn

Filing 7

OPINION and ORDER Dismissing the Petition for a Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RYAN ELLIOTT CUNNINGHAM,
Petitioner,
Case No. 4:15-CV-13049
Honorable Linda V. Parker

v.
THOMAS WINN,
Respondent.
________________________________/

OPINION & ORDER DISMISSING THE PETITION FOR A WRIT OF
HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY,
& DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
I.

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

Ryan Elliott Cunningham (“Petitioner”) pleaded guilty in the Circuit Court for
Jackson County, Michigan, to operating/maintaining a Methamphetamine lab,1
possession of a short barreled shotgun,2 unlawful driving away of an automobile,3
felon in possession of a firearm,4 and third-degree fleeing and eluding a police

1

Mich. Comp. Laws § 333.7401(c)(2)(f).

2

Mich. Comp. Laws § 750.224b.

3

4

Mich. Comp. Laws § 750.413.
Mich. Comp. Laws § 750.227f.

officer.5 In 2013, Petitioner was sentenced, as a third habitual offender, to twelve (12)
to forty (40) years imprisonment on the Methamphetamine lab conviction and
concurrent terms of three (3) to ten (10) years imprisonment on each of the other
convictions. In his petition, he raises claims concerning the validity of his plea and
the effectiveness of counsel, the scoring of an offense variable of the state sentencing
guidelines, and the use of judicially-found facts at sentencing. For the reasons set
forth below, the Court is dismissing without prejudice the petition for a writ of habeas
corpus. The Court also is denying 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);

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Mich. Comp. Laws § 257.602(A)(3)(a).
2

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). In Michigan, the claims must be
presented 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). The
burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
The record before the Court indicates that Petitioner presented his first two
habeas claims (concerning the validity of his plea/the effectiveness of trial counsel
and the scoring of an offense variable) to the state courts on direct appeal of his
convictions, but did not present his third habeas claim (concerning judicially-found
facts at sentencing) to the state courts for review. Petitioner has thus failed to
properly exhaust all of his claims in the state courts before proceeding on federal
habeas review.
Petitioner has an available avenue for relief in the state court system such that
his pursuit of state court remedies would not be futile, in that he may file a motion for
relief from judgment pursuant to Michigan Court Rule 6.500. The unexhausted
sentencing claim should be addressed to, and considered by, the state courts in the
first instance. Otherwise, this federal habeas court cannot apply the standard found at
28 U.S.C. § 2254.
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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 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).
A federal court also has the 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.” Id. at 277. Specifically, there must be good cause for the petitioner's
failure to exhaust the claims, the unexhausted claims must not be “plainly meritless,”
and the petitioner must not have “engaged in intentionally dilatory litigation tactics.”
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Id. at 278. Moreover, the Rhines Court adopted the procedure specifically to address
the situation where outright dismissal of the habeas petition would jeopardize the
timeliness of a future petition. Id. at 275 (noting that if court dismissed habeas
petition “close to the end of the 1-year period, the petitioner's chances of exhausting
his claims in state court and refiling his petition in federal court before the limitations
period [ran would be] slim.”). Thus stay-and-abeyance generally is reserved for those
cases where AEDPA’s one-year limitations period has expired or will likely expire
before the petitioner has the opportunity to return to state court to exhaust additional
claims and then, if necessary, return to federal court to file a new habeas petition.
See, e.g., Moore v. Hofbauer, No. 07-10687, 2007 WL 3173968, at *2-3 (E.D. Mich.
Oct. 16, 2007). As one district court has summarized:
A federal court may stay a federal habeas petition and hold
further proceedings in abeyance pending resolution of state
court post-conviction proceedings if outright dismissal of a
habeas petition would jeopardize the timeliness of a future
petition, there is good cause for the petitioner's failure to
exhaust those claims, the unexhausted claims are not
“plainly meritless,” and “there is no indication that the
petitioner engaged in intentionally dilatory litigation
tactics.”
Strickland v. Berghuis, 13-cv-10350, 2013 WL 2482895, at *1 (E.D. Mich. June 10,
2013) (quoting Rhines, 544 U.S. 269, 278 (2005)). Petitioner does not show the need
for a stay.
First, the one-year statute of limitations, see 28 U.S.C. § 2244(d), does not pose

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a problem for Petitioner as long as he promptly pursues his state court remedies. The
Michigan Supreme Court denied Petitioner leave to appeal on December 30, 2014.
People v. Cunningham, 497 Mich. 948, 857 N.W.2d 47 (2014). The one-year
limitations period did not begin to run until 90 days later on or about March 30, 2015.
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 filed his undated federal habeas
petition on August 25, 2015. Thus, just under five months 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. See Johnson v. Warren, 344 F. Supp. 2d
1081, 1088-89 (E.D. Mich. 2004). Petitioner therefore has sufficient time to seek
collateral review of his unexhausted claim in the state courts and then to return to
federal court on a perfected petition.
Second, while there is no indication that Petitioner has engaged in
“intentionally dilatory tactics,” he does not allege 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 a new legal basis for his judicial fact-finding
claim, he offers no reason for failing to pursue the matter on collateral review in the
state courts before filing his habeas petition. Given such circumstances, a stay is
unwarranted and a non-prejudicial dismissal of the petition is appropriate.

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III.

Conclusion
For the reasons stated, the Court concludes that Petitioner has not exhausted

available state court remedies as to all of his habeas claims. Accordingly, the Court
DISMISSES WITHOUT PREJUDICE the petition for a writ of habeas corpus.
Should Petitioner wish to delete the unexhausted claim and proceed only on the fully
exhausted claims, he may move to re-open this case and amend his petition to proceed
only on the exhausted claims within thirty (30) days of the filing date of this order.
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 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. The Court also DENIES leave to

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proceed in forma pauperis on appeal as an appeal cannot be taken in good faith. See
Fed. R. App. P. 24(a).
SO ORDERED.
S/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: December 2, 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, December 2, 2015, by electronic and/or U.S.
First Class mail.
S/ Richard Loury
Case Manager

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