Greene v. Rivard

Filing 7

OPINION and ORDER Dismissing 1 Petition for Writ of Habeas Corpus; Denying a Certificate of Appelability, and Denying Leave to Proceed in forma pauperis on appeal. Signed by District Judge John Corbett O'Meara. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LOREN DEPREE GREENE, #214156,
Petitioner,
CASE NO. 5:11-CV-12363
HONORABLE JOHN CORBETT O’MEARA

v.
STEVE RIVARD,
Respondent.
/

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
I.

Introduction
This is a habeas case brought pursuant to 28 U.S.C. § 2254. This matter is before the Court’s

on Petitioner’s letter regarding two pending state court motions which concern the convictions at
issue in this action. The Court previously denied Petitioner’s request to stay his habeas proceedings
finding that he had failed to show the need for a stay, but providing that he could request a nonprejudicial dismissal of his petition should he wish to further pursue matters in the state courts. See
6/9/11 Op., Dkt. #4. When he filed his initial pleadings, Petitioner did not inform the Court that he
had motions pending in state court. In his letter, however, he states that he has filed motions to have
DNA evidence re-tested and to compel documents with the state trial court and that the Michigan
State Police Crime Lab has granted a Freedom of Information Act request concerning his case.

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II.

Discussion
It is well-established that a prisoner filed a petition for a writ of habeas corpus under 28

U.S.C. §2254 must first exhaust available 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). 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. See 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. See Koontz v. Glossa, 731 F.2d 365,
368 (6th Cir. 1984). Each issue must be presented to both the Michigan Court of Appeals and the
Michigan Supreme Court to satisfy the exhaustion requirement. See 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.
As noted, Petitioner admits that he has motions pending in state court which concern the
convictions at issue in this case. Petitioner must complete the state court process before seeking
habeas relief in federal court. See, e.g., 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). Federal habeas 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. See 28 U.S.C. § 2254(d). The state courts must first be given

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a fair opportunity to rule upon Petitioner’s habeas claims before he can present those claims to this
Court. Otherwise, the Court cannot apply the standard found at 28 U.S.C. § 2254. Petitioner’s
pending motions appear to concern the factual bases for his current habeas claims – issues which
must be fully exhausted before proceeding on federal habeas review. Furthermore, the state
proceedings may result in the reversal of his convictions, 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 Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir.1983), and Woods v. Gilmore, 26
F. Supp. 2d 1093, 1095 (C.D. Ill. 1998)); see also Szymanski v. Martin, 99-CV-76196-DT, 2000 WL
654916 (E.D. Mich. April 13, 2000). Non-prejudicial dismissal of the petition is warranted under
such circumstances.
III.

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

petition for a writ of habeas corpus. The Court makes no determination as to the merits of
Petitioner’s claims.
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 is warranted only when
“the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). When a district court denies a habeas claim 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. See
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). The Court concludes that reasonable jurists could

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not debate the correctness of the Court’s procedural ruling. Accordingly, the Court DENIES a
certificate of appealability. The Court also DENIES leave to proceed in forma pauperis on appeal
as any appeal would be frivolous and cannot be taken in good faith. See Fed. R. App. P. 24(a). This
case is closed.
IT IS SO ORDERED.

s/John Corbett O’Meara
United States District Judge

Date: July 26, 2011

I hereby certify that a copy of the foregoing document was served upon Petitioner at St.
Louis Correctional Facility on this date, July 26, 2011, using first-class U.S. mail.

s/William Barkholz
Case Manager

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