Johnson v. MacLaren

Filing 4

MEMORANDUM OPINION and ORDER Denying Petitioner's 1 Motion to Hold Petition for Writ of Habeas Corpus in Abeyance and Dismissing Petition Without Prejudice - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Amari Johnson,
Petitioner,

Case No. 15-cv-11304
Hon. Judith E. Levy

v.
Duncan MacLaren,
Respondent.
/
OPINION AND ORDER DENYING PETITIONER’S MOTION TO
HOLD PETITION FOR WRIT OF HABEAS CORPUS IN
ABEYANCE [1] AND DISMISSING PETITION WITHOUT
PREJUDICE
Michigan state prisoner Amari Johnson has filed a pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting that
he is being held in violation of his constitutional rights.

(Dkt. 1.)

Petitioner was convicted in the Oakland County Circuit Court of two
counts of delivery or manufacture of less than 50 grams of a controlled
substance. Before the Court is Petitioner’s motion to hold the petition
in abeyance so that he can raise unexhausted claims in the state courts.
(Dkt. 1 at 22.) For the reasons set forth below, the Court will deny
Petitioner’s motion, dismiss the petition without prejudice, and deny a

certificate of appealability.
I. Background
Petitioner pled guilty in Oakland County Circuit Court to two
counts of delivery or manufacture of less than 50 grams of a controlled
substance. On April 11, 2014, he was sentenced as a fourth habitual
offender to 3 to 30 years’ imprisonment for each conviction, to be served
concurrently.
Petitioner filed an application for leave to appeal in the Michigan
Court of Appeals, raising a claim that his right to due process was
violated because the trial court relied on inaccurate information in
sentencing him. The Michigan Court of Appeals denied leave to appeal
“for lack of merit in the grounds presented.” People v. Johnson, No.
322315 (Mich. Ct. App. July 25, 2014).

Petitioner then filed an

application for leave to appeal in the Michigan Supreme Court. He
raised the sentencing-related claim and two additional claims: (1) trial
counsel was ineffective in failing to object to prosecutorial misconduct at
sentencing, and appellate counsel was ineffective in failing to raise this
claim in the Michigan Court of Appeals; and (2) the prosecutor
2

committed misconduct at sentencing.

The Michigan Supreme Court

denied leave to appeal. People v. Johnson, 497 Mich. 948 (Mich. Dec.
30, 2014).
Petitioner filed his federal habeas petition on March 7, 2015,
raising the same three claims raised in the Michigan Supreme Court.
II.

Discussion
Petitioner seeks a stay because two claims raised in the petition

were not exhausted in state court. 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 opportunity to resolve any
constitutional issues by invoking one complete round of the State’s
established appellate review process”). To satisfy this requirement, the
claims must be “fairly presented” to the state courts; i.e., the prisoner
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). A defendant has failed to “fairly present” an issue when it is
raised for the first time on discretionary review. Castille v. Peoples, 489

3

U.S. 346, 351 (1989).

While the exhaustion requirement is not

jurisdictional, a “strong presumption” exists that a petitioner 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 v. Zent, 17 F.3d 155, 160 (6th
Cir. 1994).
Two of the claims raised in the petition were raised for the first
time in Petitioner’s application for leave to appeal in the Michigan
Supreme Court. Because the Michigan Supreme Court denied leave to
appeal, the claims were not fairly presented in state court and are
unexhausted. See Farley v. Lafler, 193 F. App’x 543, 549 (6th Cir. 2006)
(holding that an issue is not fairly presented when it is raised for the
first time to the Michigan Supreme Court, and that court declines to
exercise its right to discretionary review).
A prisoner is required to comply with the exhaustion requirement
as long as there is still a state-court procedure available for him to do
so. See Adams v. Holland, 330 F.3d 398, 401 (6th Cir. 2003). In this
case, a procedure is available to Petitioner. He may file a motion for

4

relief from judgment in the Oakland County Circuit Court under
Michigan Court Rule 6.502.

If that motion is denied, he may seek

review by the Michigan Court of Appeals and Michigan Supreme Court
by filing an application for leave to appeal. Nasr v. Stegall, 978 F.
Supp. 714, 717 (E.D. Mich. 1997) (citing Mich. Ct. R. 6.509, 7.203, and
7.302).
A federal district court has discretion to stay a habeas petition to
allow a petitioner to present unexhausted claims to the state courts in
the first instance and then return to federal court on a perfected
petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). However, stay
and abeyance is available only in “limited circumstances,” such as when
the one-year statute of limitations applicable to federal habeas actions
poses a concern, and when the petitioner demonstrates “good cause” for
the failure to exhaust state court remedies and the unexhausted claims
are not “plainly meritless.” Id. at 277.
Petitioner has not shown the need for a stay. The one-year statute
of limitations applicable to federal habeas actions, 28 U.S.C. § 2244(d),
does not begin to run until 90 days after the conclusion of direct appeal.

5

Gonzalez v. Thaler, — U.S. —, 132 S. Ct. 641, 653 (2012) (stating that a
conviction becomes final when the time for filing a certiorari petition
expires).

The Michigan Supreme Court denied leave to appeal on

December 30, 2014, and Petitioner had 90 days from that date, until
March 30, 2015, to seek a writ of certiorari with the United States
Supreme Court. Petitioner filed his federal habeas petition on March 7,
2015. Thus, the limitations period had not even commenced at the time
he filed his petition.
Assuming that Petitioner files an appropriate post-conviction
motion in the state court within a reasonable period of time, the
remaining portion of the limitations period allows him ample time to refile his petition, including the exhausted and unexhausted claims, after
the conclusion of any proceedings on his motion in the state trial and
appellate courts, because “[t]he time during which a properly filed
application for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not be
counted toward any period of limitation under this subsection.”

28

U.S.C. § 2244(d)(2). “[A] post-conviction or collateral proceeding . . .

6

toll[s] the [AEDPA] statute of limitations, but does not restart it.”
Anderson v. Brunsman, 562 F. App’x 426, 430 (6th Cir. 2014) (citing 28
U.S.C. § 2244(d)(2)).

Because he has time to exhaust his state

remedies, Petitioner has not shown the need for a stay and a nonprejudicial dismissal of the habeas petition is appropriate.
III. Conclusion
Accordingly, Petitioner’s Motion to Hold Petition for Writ of
Habeas Corpus in Abeyance (Dkt. 4) is DENIED, and his petition for a
writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.

If

Petitioner wishes to proceed on the exhausted claim and abandon his
unexhausted claims, he may move to reopen these proceedings within
thirty days from the date of the Order.
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 a habeas claim on
procedural grounds without addressing the merits, a certificate of

7

appealability should issue only if it is shown that “jurists of reason
would find it debatable whether the petition states a valid claim of the
denial of a constitutional right, and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Because

reasonable jurists could not debate the correctness of the Court’s
procedural ruling, a certificate of appealability is DENIED.
IT IS SO ORDERED.
Dated: May 21, 2015
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

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 May 21, 2015.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

8