Blackshire v. Campbell
MEMORANDUM OPINION and ORDER Dismissing the 1 Petition for Writ of Habeas Corpus Without Prejudice, Denying a Certificate of Appealability, and Denying Leave to Proceed in In Forma Pauperis on Appeal - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 15-cv-13891
Judith E. Levy
United States District Judge
OPINION AND ORDER DISMISSING THE PETITION FOR A
WRIT OF HABEAS CORPUS  WITHOUT PREJUDICE,
DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON
Petitioner Chanton Blackshire filed this pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. ' 2254. He was convicted after
a jury trial in the Wayne Circuit Court of unlawfully taking possession
of and driving away a motor vehicle, MICH. COMP. LAWS ' 750.413, and
was sentenced as a fourth-time habitual felony offender to a term of
forty-six months to ten years’ imprisonment.
Petitioner raises five claims: (1) Petitioner was convicted of an
offense that he was not charged with and for which he was given no
notice; (2) the felony complaint was not signed or sworn; (3) Petitioner’s
trial attorney was ineffective for failing to meet with him prior to trial;
(4) the trial court committed misconduct, in part, by adding a charge of
unlawful driving away of a vehicle after insufficient evidence of
carjacking was presented at trial; and (5) the prosecutor committed
misconduct. (Dkt. 1 at 1-20.)
Because Petitioner’s conviction is still
being reviewed in the state courts, the petition is dismissed without
Petitioner was originally charged with carjacking. MICH. COMP.
LAWS § 750. 529a. Following closing arguments, the trial court asked
defense counsel whether her position was that Petitioner was guilty of,
at best, unlawful driving away of an automobile. (Dkt. 12-12 at 19.)
Defense counsel responded that she did make that argument based
upon the testimony of the police officers. (Id.) The prosecutor then
stated that he would request a jury instruction on the lesser offense,
and defense counsel responded that it was within the court’s discretion
to give the instruction. (Id. at 19-20.) Trial counsel did not object.
The trial court ultimately instructed the jury regarding both
Following deliberations, the jury returned a verdict of not
guilty as to carjacking and guilty as to the lesser offense of unlawful
driving away of an automobile. Petitioner filed an appeal of right, and
the Michigan Court of Appeals affirmed Petitioner’s conviction. People
v. Blackshire, No. 317594, 2014 Mich. App. LEXIS 2404 (Mich. Ct. App.
Dec. 9, 2014).
Petitioner filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claims he raised in the Michigan
Court of Appeals. The supreme court reversed the decision of the court
of appeals and remanded the case to the trial court, with instructions to
hold an evidentiary hearing on Petitioner’s claim that his trial counsel
was ineffective for “failing to argue that the instruction on the lesser
offense was barred by People v Cornell, 466 Mich 335; 646 N.W.2d 127
(2002).” People v. Blackshire, 497 Mich. 1033, 1033-34 (2015) (table).
As of now, it seems that the evidentiary hearing was held on September
22, 2015, but a decision has yet to be made. People v. Blackshire, No.
12-003666-01-FC (Wayne Cty. Cir. Ct. Sept. 22, 2015), available at
generally Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999)
(court may take judicial notice of public documents considered “not to be
subject to reasonable dispute”).
Before the Court may grant habeas relief to a state prisoner, he
must exhaust any remedies available in the state courts. 28 U.S.C.
§ 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999).
Exhaustion requires a petitioner to “fairly present” federal claims so
that state courts have a “fair opportunity” to apply controlling legal
principles to the facts bearing upon a petitioner’s constitutional claim.
See O’Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77
An applicant has not exhausted available state remedies if he has
the right under state law to raise, by any available procedure, the
See 28 U.S.C. § 2254(c).
Generally, a habeas
petition must be denied on exhaustion grounds when an appeal
challenging the conviction is still pending in the state courts. See
Juliano v. Cardwell, 432 F.2d 1051 (6th Cir. 1970) (dismissing petition
for failure to exhaust because an appeal from the denial of a postconviction motion was still pending in the state’s supreme court);
Haggard v. Tennessee, 421 F.2d 1384, 1386 (6th Cir. 1970) (dismissing
habeas petition for lack of exhaustion because a petition for postconviction relief was pending in the state’s appellate court).
Here, the Michigan Supreme Court remanded Petitioner’s case to
the trial court for an evidentiary hearing to determine whether his trial
counsel was ineffective for failing to argue that the instruction on the
lesser offense was barred by a previous case from the Michigan
Supreme Court. People v. Blackshire, 497 Mich. 1033, 1033-34 (2015)
(citing People v. Cornell, 466 Mich. 335 (2002)). The trial court has not
yet issued a decision. If Petitioner prevails on this claim on remand, he
will be entitled to a new trial and the claims raised in this petition will
be mooted. Thus, this petition is premature, because Petitioner has not
exhausted his state court remedies as required by § 2254(c).
Accordingly, the petition is DISMISSED WITHOUT PREJUDICE
for failure to exhaust.
The Court also denies a certificate of appealability. In order to
obtain a certificate of appealability, Petitioner must make “a
substantial showing of the denial of a constitutional right.”
U.S.C. § 2253(c)(2).
Under this standard, a petitioner must
demonstrate that “reasonable jurists could debate whether (or, for that
matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Slack v. McDaniel, 529 U.S. 473,
483 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).
This determination “requires an overview of the claims in the habeas
petition and a general assessment of their merit,” but “does not require
a showing that the appeal will succeed.” Miller-El v. Cockrell, 537 U.S.
322, 337 (2003). Petitioner fails to make a substantial showing of the
denial of a federal constitutional right, given that he has not yet
exhausted his remedies before the state courts.
Finally, the Court denies leave to proceed in forma pauperis on
appeal. A court may grant in forma pauperis status if the court finds
that an appeal would be taken in good faith. See 28 U.S.C. § 1915(a)(3);
Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002) (“The
standard for issuing a certificate of appealability has a higher threshold
than the standard for granting in forma pauperis status, which requires
showing that the appeal is not frivolous.”) (citing United States v.
Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997)). Because an appeal
could not be taken in good faith here, Petitioner may not proceed in
forma pauperis if he wishes to appeal this decision. Id.
IT IS SO ORDERED.
Dated: December 20, 2016
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 20, 2016.
s/Felicia M. Moses
FELICIA M. MOSES
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