Jackson v. McCullick
Filing
13
OPINION and ORDER Holding in Abeyance 1 Petition for Writ of Habeas Corpus, Signed by District Judge Judith E. Levy. (WBar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Samuel Leshawn Jackson,
Petitioner,
Case No. 17-cv-10906
v.
Hon. Judith E. Levy
United States District Judge
Daniel Lesatz,1
Mag. Judge Patricia Morris
Respondent.
________________________________/
OPINION AND ORDER HOLDING IN ABEYANCE THE
PETITION FOR A WRIT OF HABEAS CORPUS [1]
I. BACKGROUND
Petitioner Samuel Leshawn Jackson is incarcerated at the Baraga
Correctional Facility in Baraga, Michigan. Following a jury trial in the
Saginaw County Circuit Court, Petitioner was convicted of two counts of
assault with intent to murder, Mich. Comp. Laws § 750.83, three counts
of possession of a firearm during the commission of a felony (felonyfirearm), Mich. Comp. Laws § 750.227b, and one count of carrying a
The Court amends the caption to reflect the current warden where Petitioner
is incarcerated.
1
1
dangerous weapon with unlawful intent, Mich. Comp. Laws § 750.226.
He was sentenced to 235 months to forty years for assault with intent to
murder, two years for each felony-firearm conviction, and thirty months
to five years for carrying a dangerous weapon. Petitioner’s conviction was
affirmed on appeal. People v. Jackson, No. 319398, 2015 WL 3648932
(Mich. Ct. App. June 11, 2015); lv. den. 498 Mich. 951 (2015).
On March 16, 2017,2 Jackson filed a pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Jackson
challenges his convictions on the grounds that three aspects of his
criminal trial violated his federal constitutional rights to due
process and to a fair trial. (ECF No. 1, PageID.21.)
Petitioner did not exhaust his claims because he did not raise them
in state court. Instead of dismissing the petition, the Court stays the
proceedings and holds the petition in abeyance to permit Petitioner to
return to state courts to properly exhaust his claims. The Court will also
administratively close the case.
II. LEGAL STANDARD
Under the prison mailbox rule, this Court assumes that Petitioner filed his
habeas petition on March 16, 2017, the date that it was signed and dated. See Towns
v. U.S., 190 F.3d 468, 469 (6th Cir. 1999).
2
2
A state prisoner seeking federal habeas relief must first exhaust his
available state-court remedies before raising a claim in federal court. 28
U.S.C. § 2254(b)-(c); Baldwin v. Reese, 541 U.S. 27, 27 (2004). The
exhaustion requirement allows “state courts an opportunity to act on [a
petitioner’s] claims before [they] present those claims to a federal court.”
O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Although exhaustion is
not a jurisdictional matter, “it is a threshold question that must be
resolved” before a federal court can reach the merits of any claim
contained in a habeas petition. See Wagner v. Smith, 581 F.3d 410, 415
(6th Cir. 2009). A federal court may not reach the merits of a habeas
petition if even one claim has not been fully exhausted. Id. “Therefore,
each claim must be reviewed by a federal court for exhaustion before any
claim may be reviewed on the merits.” Id. Federal district courts must
dismiss habeas petitions which contain unexhausted claims. See Pliler v.
Ford, 542 U.S. 225, 227 (2004) (citing Rose v. Lundy, 455 U.S. 509 (1982)).
A habeas petitioner has the burden of proving that they have exhausted
their state court remedies. Sitto v. Bock, 207 F. Supp. 2d 668, 675 (E.D.
Mich. 2002) (citing Rust v. Zent, 17 F.3d 1555, 160 (6th Cir. 1994)). A
federal court may itself raise the issue of exhaustion. See Benoit v. Bock,
3
237 F. Supp. 2d 804, 806 (E.D. Mich. 2003) (citing Prather v. Rees, 822
F.2d 1418, 1422 (6th Cir. 1987)).
To satisfy the exhaustion requirement, a habeas petitioner must
have presented each claim to the state courts as a federal constitutional
issue, not merely as an issue that arises under state law. Hruby v. Wilson,
494 Fed. App’x 514, 517 (6th Cir. 2012) (internal citations omitted). To
do so, petitioners must cite to the United States Constitution, federal
decisions using constitutional analysis, or state decisions employing
constitutional analysis in similar fact patterns. Fuller v. Winn, Case No.
18-13988, 2019 WL 4023788, *2 (E.D. Mich. Aug. 27, 2019) (citing Levine
v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993)). It is not enough that all
the facts necessary to support the federal claim were presented to the
state court or that a somewhat similar state law claim was made.
Jalowiec v. Bradshaw, 657 F.3d 293, 304 (6th Cir. 2011) (citing Anderson
v. Harless, 459 U.S. 4, 6 (1982)).
III. ANAYLSIS
Each of Petitioner’s claims alleges a violation of his federal
constitutional rights. However, Jackson did not raise any of his current
federal constitutional arguments during his state-court appeal. M.C.R.
4
7.212(C)(5) requires a statement of the questions involved, with each
issue for appeal separately numbered. See Dando v. Yukins, 461 F.3d 791,
797 (6th Cir. 2006). While Jackson challenged the same underlying
incidents on direct appeal as he does in this petition, Jackson’s statement
of questions and appellate brief show that his state-court appeal raised
only state law claims and a single Sixth Amendment claim. Therefore, he
has not exhausted his current federal constitutional claims.
A. Failure to Permit Voir Dire
Jackson’s first claim challenges the trial court’s refusal to allow the
defense to voir dire prospective jurors before dismissal. In his habeas
petition, he alleges that “[he] was denied his state and federal
constitutional rights to due process of law where the trial court erred
when it excluded prospective jurors for cause without first permitting the
Defense the opportunity to voir dire them.” (ECF No. 1, PageID.21.) On
his direct appeal, Jackson framed the issue only as a Sixth Amendment
violation: “whether defendant was deprived of his Sixth Amendment
constitutional right to an impartial jury drawn from a fair cross section
of the community by the trial court’s application of MCR 2.511(d)(1),
challenging potential jurors for cause.” (ECF No. 10-20, PageID.861.) As
5
this comparison makes clear, Petitioner is raising due process arguments
for the first time. Additionally, neither Petitioner’s appellate brief nor the
Court of Appeals’ opinion mention due process. (ECF No. 10-20,
PageID.866-867; People v. Jackson, 2015 WL 3648932.)
B. Failure to Exclude Prejudicial Evidence
Jackson’s second claim challenges the admission of prejudicial
evidence. In his habeas petition, he alleges that “[he] was denied his state
and federal constitutional rights to due process of law and a fair trial
guaranteed him through the Fifth and Fourteenth amendments when
the trial court abused its discretion to allow prejudicial and irrelevant
evidence to be admitted into the trial proceedings.” (ECF No. 1,
PageID.21.) By contrast, on direct appeal Jackson only challenged the
evidentiary admissions on state law grounds. He presented the question
to the Michigan Court of Appeals as “whether the police officer’s expert
testimony regarding a group photo, and a portion of a witness interview,
was impermissible character evidence.” (ECF No. 10-20, PageID.861.)
Petitioner’s appellate brief does not reference any violation of his due
process rights or right to a fair trial. (ECF 10-20, PageID.867-870.) The
Court of Appeals’ opinion also does not address Jackson’s due process
6
rights or right to a fair trial with respect to this claim. People v. Jackson,
2015 WL 3648932.
C. Prosecutorial Misconduct
Jackson’s third claim challenges the Prosecution’s calling of a
witness who subsequently invoked his Fifth Amendment rights. In his
habeas petition, Jackson claims that
“[he] was denied his state and federal constitutional rights to
due process of law and a fair trial guaranteed him through the
Fifth and Fourteenth amendments when the prosecution
committed misconduct by calling a witness to testify that
invoked his Fifth Amendment right . . . depriv[ing] Mr.
Jackson of a fair and impartial trial.”
(ECF No. 1, PageID.21.) On his direct appeal, Jackson limited his
challenge to the question of “whether a witness’ attempted on-thestand assertion of privilege against self-incrimination prejudiced
defendant,
and
whether
the
prosecution
intentionally
or
negligently contributed to making a witness unavailable.” (ECF No.
10-20, PageID.861.) As with his second claim, Jackson’s appellate
brief does not address either his due process rights or his right to a
fair trial. (ECF 1-20, PageID.870-872.) The Court of Appeals also
7
did not mention Jackson’s federal constitutional rights in its
opinion. People v. Jackson, 2015 WL 3648932.
D. Failure to Exhaust
To bring his claims in his current petition, Jackson needed to have
first exhausted each claim in state court. Jackson did not raise a due
process or fair trial claim in the headings or body of his appeal brief. See
Wagner v. Smith, 581 F.3d 410, 415-17 (6th Cir. 2009). Nor does
Jackson’s appellate brief cite any state or federal cases employing federal
constitutional analysis. See Slaughter v. Parker, 450 F.3d 224, 236 (6th
Cir. 2006). Thus, Jackson did not fairly present the issue of federal due
process rights or the right to a fair trial in his state-court appeal. He has
not exhausted any of his claims.
E. Available State-Court Relief
The exhaustion doctrine, in the context of habeas cases, turns upon
an inquiry into whether there are available state-court procedures for a
habeas petitioner to exhaust his claims. See Adams v. Holland, 330 F.3d
398, 401 (6th Cir. 2003). An exception to the exhaustion requirement
exists only if there is no opportunity to obtain relief in the state courts or
if the corrective process is so clearly deficient as to render futile any effort
8
to obtain relief in the state courts. Duckworth v. Serrano, 454 U.S. 1, 3
(1981); Sitto, 207 F. Supp. 2d at 676.
In this case, Petitioner may still seek state-court relief from
judgment with the Saginaw County Circuit Court under M.C.R. 6.502. If
the Circuit Court denies Jackson’s motion, Petitioner is required to
appeal to the Michigan Court of Appeals and the Michigan Supreme
Court to properly exhaust any claims. M.C.R. 6.509, 7.203, & 7.302; Nasr
v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997).
III. HOLDING CASE IN ABEYANCE
The outright dismissal of the petition, albeit without prejudice,
might result in preclusion of consideration of Petitioner’s claims in this
Court due to the expiration of the one-year statute of limitations imposed
by the Antiterrorism and Effective Death Penalty Act (AEDPA). See 28
U.S.C. § 2244(d)(1). Petitioners can find themselves in a procedural trap
when their original habeas petition is timely filed but includes
unexhausted claims, as is the case here, but a second, fully exhausted
petition could be time barred by the statute of limitations. See Hargrove
v. Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002).
9
The U.S. Supreme Court notes that a habeas petitioner who is
concerned about the possible effects of his state post-conviction filings on
the AEDPA’s statute of limitations can file a “protective” petition in
federal court and then ask for the petition to be held in abeyance pending
the exhaustion of state post-conviction remedies. See Pace v.
DiGuglielmo, 544 U.S. 408, 416 (2005) (citing Rhines v. Weber, 544 U.S.
269, 278 (2005)). A federal court may stay a habeas petition and hold
further proceedings in abeyance pending resolution of state-court postconviction proceedings, if there is good cause for failure to exhaust and
the unexhausted claims are not “plainly meritless.” Rhines, 544 U.S. at
277. A court may do so even if a petitioner does not specifically request
seek an administrative stay and abeyance. See e.g. Banks v. Jackson, 149
F. App’x 414, 422, n. 7 (6th Cir. 2005).
Petitioner’s claims do not appear to be “plainly meritless.” Wagner
v. Smith, 581 F.3d at 419. Indeed, the State’s carefully crafted, fifty-page
response to Jackson’s petition demonstrates that deciding this case will
require careful evaluation of the law and the facts. (ECF No. 9.)
Petitioner also has good cause for failure to exhaust his claims. The
good-cause requirement “is not intended to impose the sort of strict and
10
inflexible requirement that would trap the unwary pro se prisoner,”
Rhines, 544 U.S. at 279 (Stevens, J., concurring) (internal quotation
omitted). This Court has consistently held that appellate counsel’s failure
to raise a claim on direct appeal constitutes good cause for holding the
petition in abeyance pending exhaustion. See Lanton v. Lafler, No. 2:06CV-11103, 2007 WL 2780552, *2 (E.D. Mich. Sep. 24, 2007). Petitioner
was represented by counsel on appeal but now proceeds pro se. Petitioner
may assert that he did not previously raise his claims in the state courts
as federal claims due to the ineffective assistance of appellate counsel.
Wagner, 581 F.3d at 419 & nn. 4, 5. Petitioner also has good cause for
failing to raise any ineffective assistance of appellate counsel claim
earlier because state post-conviction review would be the first
opportunity that he had to raise this claim in the Michigan courts. See
Guilmette v. Howes, 624 F.3d 286, 291 (6th Cir. 2010).
When a district court determines that a stay is appropriate pending
exhaustion of state-court remedies, the district court “should place
reasonable time limits on a petitioner’s trip to state court and back.”
Rhines, 544 U.S. at 278. Petitioner will have ninety days from the date of
this Order to file a post-conviction motion for relief from judgment with
11
the state trial court. After exhausting his state-court remedies, he must
ask this Court to lift the stay within ninety days. If the conditions of the
stay are not met, “the stay may later be vacated [retroactively] as of the
date the stay was entered, and the petition may be dismissed.” Palmer,
276 F.3d at 781 (internal quotation omitted).
IV. ORDER
The case is STAYED.
Petitioner may file a motion for relief from judgment with the state
court within ninety days of receipt of this Court’s Order. If Petitioner fails
to file a motion for relief from judgment with the state courts by that
date, the Court will lift the stay and dismiss this petition without
prejudice.
Petitioner is ORDERED to notify the Court within seven days from
the time he files a motion for relief from judgment. The case will then be
held in abeyance pending Petitioner’s exhaustion of the claim or claims.
Petitioner may refile his habeas petition, using the same caption
and case number, within ninety days after the conclusion of the statecourt post-conviction proceedings. Petitioner is free at that time to file an
amended habeas petition which contains any newly exhausted claims.
12
Upon receipt of Petitioner’s refiled habeas petition following exhaustion
of state remedies, the Court will lift the stay.
Failure to comply with any of the conditions of the stay could result
in the dismissal of the habeas petition. Calhoun v. Bergh, 769 F.3d 409,
411 (6th Cir. 2014).
IT IS SO ORDERED.
Dated: October 29, 2019
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 October 29, 2019.
s/William Barkholz
WILLIAM BARKHOLZ
Case Manager
13
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?