Carmichael v. Palmer
Filing
10
OPINION and ORDER Granting 8 MOTION to Dismiss Petitioner's Application for Writ of Habeas Corpus; DISMISSING without prejudice 1 Petition for Writ of Habeas Corpus; Declining to Issue a Certificate of Appealability, 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
TRACY CARMICHAEL,
Petitioner,
CASE NO. 12-15385
HONORABLE JOHN CORBETT O’MEARA
v.
CARMEN D. PALMER,
Respondent.
___________________________/
OPINION AND ORDER
GRANTING RESPONDENT’S MOTION TO DISMISS,
DISMISSING THE HABEAS PETITION WITHOUT PREJUDICE,
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY,
AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Tracy Carmichael has filed a pro se application for the writ of habeas corpus
under 28 U.S.C. § 2254. The habeas petition challenges Petitioner’s Wayne County convictions
for embezzlement, forgery, uttering and publishing, false pretenses, and second-degree money
laundering. Petitioner seeks habeas corpus relief on grounds that several witnesses committed
perjury in court, he was deprived of his right to confront witnesses, and the prosecutor
committed misconduct. Respondent Carmen Palmer argues in a motion to dismiss the petition
that Petitioner did not exhaust state remedies for his claims by presenting them to both the
Michigan Court of Appeals and the Michigan Supreme Court. The Court agrees. Therefore,
Respondent’s motion to dismiss is granted, and the habeas petition is dismissed without
prejudice. A history of this case and a discussion follow.
I. BACKGROUND
On December 14, 2009, a Wayne County Circuit Court jury found Petitioner guilty of:
embezzlement, MICH. COMP. LAWS § 750.174; four counts of forgery, MICH. COMP. LAWS §
750.248; four counts of uttering and publishing, MICH. COMP. LAWS § 750.249; false pretenses,
MICH. COMP. LAWS § 750.218; and second-degree money laundering, MICH. COMP. LAWS §
750.411n. The trial court sentenced Petitioner as a habitual offender as follows: eleven to thirty
years in prison for the embezzlement conviction; eleven to twenty-one years in prison for the
forgery and uttering and publishing convictions; and ten to fifteen years in prison for the false
pretenses and money laundering convictions.
In an appeal as of right, Petitioner argued that: (1) the trial court did not comply with the
requirements for waiver of the right to counsel; (2) he was deprived of the right to a public trial
during jury selection; and (3) venue was improper for four of the charged crimes. The Michigan
Court of Appeals disagreed with each of these assertions and affirmed Petitioner’s convictions in
an unpublished, per curiam opinion. See People v. Carmichael, No. 296095 (Mich. Ct. App.
Mar. 10, 2011).
Petitioner raised the same three claims and the following new claims in a pro se
application for leave to appeal in the Michigan Supreme Court: (1) several witnesses committed
perjury in court; (2) he was denied his right to confront witnesses; (3) the prosecutor incited,
suborned, and assisted witnesses in committing perjury; (4) the prosecution added charges and
an aiding-and-abetting theory during trial; and (5) the prosecutor deprived him of due process
and a fair trial by using false testimony, suppressing evidence, intimidating witnesses, amending
the information, and misrepresenting the truth. On September 6, 2011, the Michigan Supreme
2
Court denied leave to appeal because it was not persuaded to review the issues. See People v.
Carmichael, 802 N.W.2d 63 (Mich. 2011) (table).
Petitioner signed and dated his habeas corpus petition on December 4, 2012, and on
December 7, 2012, the Clerk of the Court filed the petition. Petitioner alleges that: (1) several
witnesses committed perjury in court; (2) he was denied his Sixth Amendment right to confront
witnesses; (3) the prosecutor incited and suborned perjury; and (4) the prosecutor deprived him
of his Fourteenth Amendment right to due process throughout the proceedings. Respondent
points out in his motion to dismiss the petition that Petitioner raised these claims in the Michigan
Supreme Court, but not in the Michigan Court of Appeals. Although Respondent urges the
Court to dismiss the petition on exhaustion grounds, Petitioner has not filed a reply to
Respondent’s motion.
II. DISCUSSION
The doctrine of exhaustion of state remedies requires state prisoners to fairly present all
their claims to the state court before raising their claims in a federal habeas corpus petition. See
28 U.S.C. §§ 2254(b)(1) and 2254(c); O’Sullivan v. Boerckel, 526 U.S. 838, 842, 844-45 (1999);
Nali v. Phillips, 681 F.3d 837, 851 (6th Cir.), cert. denied, __ U.S. __, 133 S. Ct. 535 (2012).
The exhaustion requirement is satisfied if a prisoner “invok[es] one complete round of the
State’s established appellate review process,” including a petition for discretionary review in the
state supreme court, “when that review is part of the ordinary appellate review procedure in the
State.” O’Sullivan v. Boerckel, 526 U.S. at 845, 847. This means that a habeas petitioner must
present each issue to the state court of appeals and to the state supreme court. Wagner v. Smith,
581 F.3d 410, 414 (6th Cir. 2009) (citing Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990)
3
(citing Winegar v. Corr. Dep’t, 435 F. Supp. 285, 289 (W.D. Mich. 1977)). “It is the petitioner’s
burden to prove exhaustion.” Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994) (citing Darr v.
Burford, 339 U.S. 200, 218-19 (1950)). “Although the exhaustion doctrine is not a jurisdictional
matter, Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000), it is a threshold question that must
be resolved before [courts] reach the merits of any claim.” Wagner v. Smith, 581 F.3d at 415
(citing Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009)).
Petitioner raised his habeas claims in the Michigan Supreme Court, but not in the
Michigan Court of Appeals. “For a claim to be reviewable at the federal level, each claim must
be fairly presented at every stage of the state appellate process.” Id. at 418. A claim raised for
the first and only time on a petition to a state’s highest court where review is discretionary and
not a matter of right does not constitute “fair presentation” for purposes of the exhaustion
requirement. Castille v. Peoples, 489 U.S. 346, 351 (1989).
Exceptions to the exhaustion requirement exist when “there is an absence of available
State corrective process,” 28 U.S.C. § 2254(b)(1)(B)(i), or “circumstances exist that render such
process ineffective to protect the rights of the applicant,” 28 U.S.C. § 2254(b)(1)(B)(ii). These
exceptions, however, do not apply here because Petitioner has an available remedy to exhaust.
He should be able to file a motion for relief from judgment in the state trial court under Michigan
Court Rule 6.502.1 If he is unsuccessful in the trial court, he may apply for leave to appeal in the
1
Pursuant to Michigan Court Rule 6.508(D)(2), a state court may not grant relief from
judgment if the movant “alleges grounds for relief which were decided against the defendant in a
prior appeal . . . unless the defendant establishes that a retroactive change in the law has
undermined the prior decision.” The Michigan Supreme Court did not adjudicate the merits of
Petitioner’s claims on direct appeal; instead, it denied leave to appeal because it was not
persuaded to review the issues. Thus, Rule 6.508(D)(2) should not be a bar to presentation of
Petitioner’s claims in a motion for relief from judgment.
4
Michigan Court of Appeals, see Mich. Ct. R. 6.509(A); Mich. Ct. R. 7.203(B), and in the
Michigan Supreme Court, see Mich. Ct. R. 7.301-302. Petitioner may have to show “good
cause” for not raising his claims in the appeal of right and “actual prejudice from the alleged
irregularities that support the claim for relief.” Mich. Ct. R. 6.508(D)(3)(a) and (b). But he
would have to make a similar showing here if the Court concluded that he no longer had an
available remedy to exhaust. See Rust v. Zent, 17 F.3d at 160 (explaining that “[e]xhaustion is a
problem only if the state still provides a remedy for the habeas petitioner to pursue” and that,
“[i]f no remedy exists, and the substance of a claim has not been presented to the state courts, . . .
it is a problem of determining whether cause and prejudice exist to excuse the failure to present
the claim in the state courts”).
III. CONCLUSION
Petitioner has not satisfied his burden of proving that he exhausted state remedies for his
claims by raising his claims at all levels of state court review.
Accordingly, Respondent’s motion to dismiss (ECF No. 8) is GRANTED, and the
petition for writ of habeas corpus (ECF No. 1) is DISMISSED without prejudice. The Court
declines to say whether a future habeas petition would be barred by the statute of limitations or
by some other procedural default.
IV. CERTIFICATE OF APPEALABILITY
Reasonable jurists would not debate whether the petition states a valid claim of the denial
of a constitutional right or whether the Court’s procedural ruling is correct. Slack v. McDaniel,
529 U.S. 473, 484 (2000). Therefore, the Court declines to issue a certificate of appealability.
And because an appeal from this decision could not be taken in good faith, Petitioner may not
5
proceed in forma pauperis on appeal if he appeals this decision. 28 U.S.C. § 1915(a)(3).
s/John Corbett O'Meara
United States District Judge
Date: August 1, 2013
I hereby certify that a copy of the foregoing document was served upon the parties of
record on this date, August 1, 2013, using the ECF system and/or ordinary mail.
s/William Barkholz
Case Manager
6
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?