Smith v. Hoffner

Filing 10

MEMORANDUM OPINION and ORDER Denying Petitioner's 5 MOTION to Stay Proceedings, Dismissing 1 Petition for Writ of Habeas Corpus Without Prejudice, and Denying Certificate of Appealability - Signed by District Judge Judith E. Levy. (FMos)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Kahri Smith,
Petitioner,

Case Number: 15-cv-11648
Hon. Judith E. Levy
Mag. Judge Anthony P. Patti

v.
Bonita Hoffner,
Respondent.

/

OPINION AND ORDER DENYING PETITIONER’S MOTION TO
STAY PROCEEDINGS [5], DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS WITHOUT PREJUDICE,
AND DENYING CERTIFICATE OF APPEALABILITY
I.

Introduction
Michigan state prisoner Kahri Smith has filed a petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254, asserting he is being
held in violation of his constitutional rights. (Dkt. 1) Petitioner was
convicted in Wayne County Circuit Court of second-degree murder,
Mich. Comp. Laws § 750.317. Before the Court is Petitioner’s motion
to stay these proceedings so that he can raise unexhausted claims in the
state courts. (Dkt. 5). For the reasons set forth below, the Court will
deny Petitioner’s motion, dismiss the petition without prejudice, and

deny a certificate of appealability.
II.

Background
Petitioner was convicted by a jury of second-degree murder in

connection with the beating death of his uncle.

The trial court

sentenced him to twenty to forty years’ imprisonment. Petitioner filed
an application for leave to appeal in the Michigan Court of Appeals,
raising claims that the trial court denied him his right to present a
defense and that the trial court incorrectly scored several offense
variables.

The Michigan Court of Appeals denied Petitioner’s

application for leave to appeal “for lack of merit in the grounds
presented.”

People v. Smith, No. 309407 (Mich. Ct. App. Nov. 28,

2012). Petitioner then filed an application for leave to appeal in the
Michigan Supreme Court. The Michigan Supreme Court, in lieu of
granting leave to appeal, remanded the case to the Michigan Court of
Appeals for consideration as on leave granted.

People v Smith, 494

Mich. 874 (2013).
On remand, the Michigan Court of Appeals affirmed Petitioner’s
conviction, but vacated the sentence and remanded for resentencing.

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People v. Smith, No. 309407, 2013 WL 6670897 (Mich. Ct. App. Dec. 17,
2013).

Petitioner filed an application for leave to appeal in the

Michigan Supreme Court, raising the claim that he was denied his right
to present a defense. The Michigan Supreme Court denied leave to
appeal. People v. Smith, 496 Mich. 859, 847 N.W.2d 513 (Mich. June
24, 2014).
On July 30, 2014, the trial court resentenced Petitioner to the
same sentence of twenty to forty years’ imprisonment. On August 22,
2014, Petitioner filed a claim of appeal in the Michigan Court of
Appeals.

On January 26, 2015, the Michigan Court of Appeals

dismissed the appeal because the parties entered into a stipulation
agreeing to the dismissal. People v. Smith, No. 323309 (Mich. Ct. App.
Jan. 26, 2015).
On April 24, 2015, Petitioner filed the pending habeas corpus
petition. He claims that the trial court violated his right to present a
defense when it did not allow him to present evidence of self-defense.
He then filed a motion to stay the habeas proceeding.
On September 15, 2015, Petitioner filed a motion for relief from

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judgment in the trial court.

The trial court denied the motion on

November 19, 2015. People v. Smith, No. 11-000477-01-FC.
III. Discussion
Petitioner seeks a stay so that he may present unexhausted claims
of ineffective assistance of trial and appellate counsel 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) (“[S]tate 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). 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 (1987). The burden is on the
petitioner to prove exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir.

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1994).
After filing his habeas petition, which raises only one exhausted
claim, Petitioner filed a motion for relief from judgment in the trial
court, raising his unexhausted ineffective assistance of counsel claims.
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 for Petitioner to complete exhaustion of these
claims. He already has filed a motion for relief from judgment in the
Wayne County Circuit Court under Michigan Court Rule 6.502. That
motion was denied on November 19, 2015. Petitioner has six months
to file an application for leave to appeal in the Michigan Court of
Appeals. M.C.R. 7.205(G). If the Michigan Court of Appeals denies
leave to appeal, Petitioner may seek leave to appeal in the Michigan
Supreme Court.
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

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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 ninety days after the conclusion of
direct appeal. 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 June 24, 2014, and Petitioner had 90 days from that date,
until September 22, 2014, to seek a writ of certiorari with the United
States Supreme Court. The one year limitations period commenced the
next day, September 23, 2014.

Approximately five months of the

one-year limitations period applicable to habeas corpus petitions

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remained when Petitioner filed his federal habeas corpus petition on
April 24, 2015.
While the time in which this case has been pending in federal
court is not statutorily tolled, see Duncan v. Walker, 533 U.S. 167,
181-82 (2001) (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), such
time may be equitably tolled.

See, e.g., Johnson v. Warren, 344 F.

Supp. 2d 1081, 1088-89 (E.D. Mich. 2004). The limitations period will
also be tolled during the time in which any properly filed post-conviction
or collateral actions are pending in the state courts. See 28 U.S.C. §
2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-221 (2002). Assuming
that Petitioner files a timely application for leave to appeal in the
Michigan Court of Appeals and then, if that application is denied, a
timely application for leave to appeal in the Michigan Supreme Court,
he will have five months to re-file this petition after the conclusion of
proceedings in the state trial and appellate courts. Thus, Petitioner
has not shown the need for a stay and a dismissal of the habeas petition

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without prejudice is appropriate.

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IV.

Conclusion
Accordingly, Petitioner’s Motion to Stay Proceedings (Dkt. 5) 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
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

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procedural ruling, a certificate of appealability is DENIED.
IT IS SO ORDERED.

Dated: December 8, 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 December 8, 2015.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager

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