Raleigh v. Winn

Filing 5

OPINION and ORDER Dismissing Without Prejudice 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
DONALD RALEIGH,
Petitioner,
Case No. 16-13377
Honorable Linda V. Parker

v.
THOMAS WINN,
Respondent.
________________________________/

OPINION & ORDER DISMISSING WITHOUT PREJUDICE THE
PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A
CERTIFICATE OF APPEALABILITY, AND 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.

Following a jury trial in the Circuit Court for Oakland County, Michigan,
Petitioner Donald Raleigh (“Petitioner”) was convicted of first-degree felony
murder and first-degree child abuse, in violation of Michigan Compiled Laws
Sections 750.316(1)(b) and 750.136b(2), respectively. In 2013, the state trial court
sentenced Petitioner as a fourth habitual offender under Michigan Compiled Laws
Section 769.12 to life imprisonment without parole on the murder conviction and
75 to 125 years imprisonment on the child abuse conviction. In his application for
the writ of habeas corpus, Petitioner raises the following claims in support of his

request for relief: (1) his confession was coerced/involuntary and violated his
Miranda rights, his due process rights, his right against self-incrimination, and his
equal protection rights, and its admission constituted judicial misconduct; (2) the
prosecutor engaged in misconduct; and (3) trial and appellate counsel were
ineffective. 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 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 § 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
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 did not raise his
Miranda violation, judicial misconduct, prosecutorial misconduct, or ineffective
assistance of appellate counsel claims on direct appeal before the Michigan Court
of Appeals. He first raised those claims before the Michigan Supreme Court.
Presenting new issues for the first time before a state supreme court on
discretionary review, however, does not amount to a “fair presentation” of those
claims to the state courts for exhaustion purposes. Castille v. Peoples, 489 U.S.
346, 351 (1989). Petitioner thus has failed to properly exhaust all of his claims in
the state courts before seeking 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. For example, he may
file a motion for relief from judgment with the state trial court under the Michigan
Court Rules and seek further review in the state appellate courts as necessary. The
unexhausted claims should be addressed to, and properly considered by, the state
courts in the first instance. Otherwise, this Court cannot apply the standard
applicable to reviewing state court convictions found in § 2254.

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. 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 is available only in “limited circumstances,”
however, such as when 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 does not request a stay, nor does he show the
need for a stay.
First, the applicable one-year statute of limitations set forth in 28 U.S.C.
§ 2244(d) does not pose a problem for Petitioner provided he pursues his state
court remedies in a prompt fashion. The Michigan Supreme Court denied
Petitioner leave to appeal on September 9, 2015. People v. Raleigh, 868 N.W.2d
630 (Mich. 2015). The limitations period did not begin to run until 90 days later,

on or about December 8, 2015. See Jimenez v. Quarterman, 555 U.S. 113, 119-20
(2009); Lawrence v. Florida, 549 U.S. 327, 333 (2007); see also S. Ct. R. 13(1).
Petitioner dated his federal habeas petition on September 9, 2016. Thus, nine
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, such time is equitably tolled by the federal habeas courts. See Duncan v.
Walker, 533 U.S. 167, 181-82 (2001) (ruling that a federal habeas petition is not an
“application for State post-conviction or other collateral review” within the
meaning of 28 U.S.C. § 2244(d)(2) so as to statutorily toll the limitations period);
Johnson v. Warren, 344 F. Supp. 2d 1081, 1088-89 (E.D. Mich. 2004) (concluding
that the time during which the petitioner’s first-filed habeas petition was pending
in the federal habeas court should be equitably tolled). Petitioner thus has
sufficient time-- i.e., about three months-- to seek collateral review of his
unexhausted claims in the state courts and then return to federal court on a
perfected petition. Pursuant to § 2254, “[t]he time during which a properly filed
application for State post-conviction or other collateral review … is pending shall
not be counted toward [the limitation period].” 28 U.S.C. § 2254(d)(2).
Second, while there is no indication that Petitioner has engaged in
“intentionally dilatory tactics,” he neither alleges nor establishes good cause for
failing to fully exhaust all of his claims in the state courts before seeking relief in

federal court. Even if appellate counsel was ineffective during the direct appeal
process, Petitioner offers no reason why he was unable to pursue his issues on
collateral review in the state courts before filing his federal petition. Lastly, at
least some of Petitioner’s unexhausted claims do not appear to be “plainly
meritless.”
Given such circumstances, a stay is unwarranted and a non-prejudicial
dismissal of the petition is appropriate.
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. The Court, therefore,
is dismissing his petition without prejudice.
Before Petitioner may appeal this 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 only 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,
IT IS ORDERED that Petitioner’s application for the writ of habeas corpus
pursuant to 28 U.S.C. § 2254 is DISMISSED WITHOUT PREJUDICE. If
Petitioner wishes to delete the unexhausted claims 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 30 days of the filing date of this
order. The Court makes no determination as to the merits of his claims.
IT IS FURTHER ORDERED that Petitioner is DENIED a certificate of
appealability. The Court further DENIES Petitioner leave to proceed in forma
pauperis on appeal as an appeal cannot be taken in good faith. See Fed. R. App. P.
24(a).
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: December 20, 2016
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 20, 2016, by electronic and/or
U.S. First Class mail.
s/ Richard Loury
Case Manager