Rista v. 34th District Court et al

Filing 3

OPINION and ORDER Dismissing the 1 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 Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOANA RISTA,
Petitioner,
CASE NO. 5:14-CV-14688
HON. JUDITH E. LEVY

v.
MICHIGAN 34TH DIST. CT.,
Respondent.

/

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
I.

Introduction
Joana Rista (“Petitioner”) has filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 challenging a misdemeanor
disturbing the peace conviction, arising from her October 20, 2014 guilty
plea in the 34th District Court in Wayne County, Michigan. She was given
a 30-day diversionary sentence conditioned on her compliance with certain
requirements imposed by the district court.
The record reveals that Petitioner has not properly appealed her
conviction in the state courts.

She filed a claim of appeal with the

Michigan Court of Appeals, which was dismissed for lack of jurisdiction.

The court stated that Petitioner could file a delayed application for leave
to appeal with the appropriate state circuit court pursuant to Michigan
Court Rule 7.103(B). Wayne Co. Airport v. Joana Rista, No. 324506 (Mich.
Ct. App. Nov. 14, 2014). Petitioner does not indicate that she has done so.
Petitioner filed her federal habeas petition on December 11, 2014. In her
pleadings, she raises ten claims for relief concerning the charge against
her, the conduct of the prosecutor and judge, and the validity of her plea.
For the reasons stated herein, the Court will dismiss without
prejudice the petition for a writ of habeas corpus. The Court shall also
deny a certificate of appealability and deny leave to proceed in forma
pauperis on appeal.
II.

Analysis
A prisoner filing a habeas petition 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 this requirement, the claims must be “fairly
presented” to the state courts, meaning that the prisoner must have

2

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 must also be presented to the state courts as federal constitutional
issues. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). Each issue
must be presented to 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). While the exhaustion requirement is not
jurisdictional, a “strong presumption” exists that a prisoner must exhaust
available state remedies before seeking federal habeas review. Granberry
v. Greer, 481 U.S. 129, 131, 134-35 (1987). The burden is on the petitioner
to prove exhaustion. Rust, 17 F.3d at 160.
The record in this case indicates that Petitioner has not exhausted
her habeas claims in the state courts before seeking habeas review in
federal court. Petitioner has an available avenue for relief in the state
court system, and accordingly, pursuit of state court remedies would not
be futile. She may file a delayed application for leave to appeal with the
state circuit court and then continue with her direct appeal in the state

3

appellate courts as necessary. If such a remedy is no longer available, she
may file a motion for relief from judgment with the trial court under
Michigan Court Rule 6.500 et seq. and seek further appellate review in the
state courts as necessary. The unexhausted claims should be addressed
to, and considered by, the state courts in the first instance. Otherwise, the
Court cannot apply the standard found at 28 U.S.C. § 2254. Dismissal of
this petition without prejudice is appropriate.
III. Conclusion
For the reasons stated, the Court concludes that Petitioner has not
exhausted her claims in the state courts before seeking federal habeas
review. Accordingly, 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.1
Before Petitioner may appeal, a certificate of appealability must
issue. 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

The Court notes that the record is unclear about whether Petitioner is
still subject to probation or some other sentence so as to meet the “in custody”
requirement for proceeding on federal habeas review. See Lackawanna Cty.
Dist. Att’y v. Coss, 532 U.S. 394, 401 (2001); Maleng v. Cook, 490 U.S. 488,
490-91 (1989). The Court need not resolve that issue given the instant
dismissal.
1

4

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
When a 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 proceed in forma pauperis on appeal as an appeal
cannot be taken in good faith. FED. R. APP. P. 24(a).
IT IS SO ORDERED.
s/Judith E. Levy
JUDITH E. LEVY
UNITED STATES DISTRICT JUDGE
Dated: December 22, 2014
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon
counsel of record and any unrepresented parties via the Court’s ECF System to
their respective email or First Class U.S. mail addresses disclosed on the Notice of
Electronic Filing on December 22, 2014.
5

s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

6