Quigley v. Mackie
MEMORANDUM OPINION and ORDER Dismissing the 1 Petition for Writ of Habeas Corpus, Denying a Certificate of Appealability, and Denying Leave to Appeal in Forma Pauperis - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Sean W. Quigley,
Case No. 17-cv-11203
Judith E. Levy
United States District Judge
Mag. Judge David R. Grand
OPINION AND ORDER DISMISSING THE PETITION FOR A
WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN
This is a habeas case under 28 U.S.C. § 2254. Michigan prisoner
Sean Quigley (“Petitioner”) was convicted of terrorism, MICH. COMP.
MICH. COMP. LAWS
§ 750.349(1)(b), making a terrorist threat or false report of terrorism,
MICH. COMP. LAWS § 750.543m, and making a false report of a crime (a
bomb threat), MICH. COMP. LAWS § 750.411a(2)(b), following a jury trial
in the Wayne County Circuit Court.
In 2014, he was sentenced to
concurrent terms of ten to fifteen years of imprisonment for terrorism
and unlawful imprisonment, ten to twenty years of imprisonment for
making a terrorist threat, and two to four years of imprisonment for
making a false bomb threat.
Petitioner filed an appeal of right with the Michigan Court of
Appeals, raising claims concerning the applicability of the Michigan
Anti-Terrorism Act, the sufficiency of the evidence, the scoring of
certain offense variable of the state sentencing guidelines, and the
restitution order. The court affirmed in part, reversed in part (granting
relief on one of the sufficiency of the evidence claims and the restitution
claim), and remanded for resentencing and a determination of the
appropriate restitution amount. People v. Quigley, No. 322482, 2016
Mich. App. LEXIS 89 (Mich. Ct. App. Jan. 19, 2016). Petitioner then
filed an application for leave to appeal with the Michigan Supreme
Court, which was denied in a standard order. People v. Quigley, 499
Mich. 985 (2016).
Petitioner filed his pro se federal habeas petition on April 18,
2017. (Dkt. 1.) He raises claims concerning the jury instructions, the
admission of his confession, the effectiveness of trial counsel, judicial
bias, the non-disclosure of evidence, the use of perjured testimony, and
judicial misconduct and jury bias. (Id. at 3-7.)
Promptly after a habeas petition is filed, the Court must
undertake a preliminary review of the petition to determine whether “it
plainly appears from the face of the petition and any exhibits annexed
to it that the petitioner is not entitled to relief in the district court.”
Rule 4, Rules Governing § 2254 Cases; see also 28 U.S.C. § 2243. A
petition for a writ of habeas corpus must set forth facts that give rise to
a cause of action under federal law or it may be summarily dismissed.
See Perez v. Hemingway, 157 F. Supp. 2d 790, 796 (E.D. Mich. 2001).
Any habeas petition that appears legally insufficient on its face may be
dismissed. McFarland v. Scott, 512 U.S. 849, 856 (1994); see Carson v.
Burke, 178 F.3d 434, 436 (6th Cir. 1999) (a habeas corpus petition may
be summarily dismissed if it plainly appears from the face of the
petition or the exhibits that are attached to it that the petitioner is not
entitled to federal habeas relief).
Here, the habeas petition must be dismissed because it is
Petitioner’s state convictions and sentences are not yet
final, given that the Michigan Court of Appeals reversed in part and
remanded his case to the state trial court for re-sentencing. See Burton
v. Stewart, 549 U.S. 147, 156-57 (2007) (ruling that when a state court
affirms a conviction on direct review, but remands for resentencing, the
judgment of conviction does not become final, for purposes of the statute
of limitations, until the completion of direct review from the new
judgment of sentence); see also Rashad v. Lafler, 675 F.3d 564, 567-78
(6th Cir. 2012). Petitioner neither alleges nor establishes that he has
been re-sentenced. Moreover, state records indicate that he has not yet
been re-sentenced. See People v. Quigley, No. 13-009245-01-FC (Wayne
Co. Cir. Ct. Register of Actions); Offender Profile, Michigan Offender
Petitioner cannot proceed on
federal habeas review until his convictions and sentences are finalized
in the state courts.
Even if Petitioner has been re-sentenced, he cannot proceed on
habeas under 28 U.S.C. §2254 without first exhausting his available
state court remedies.
See O’Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) (“[S]tate 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.”).
For a prisoner in Michigan, each issue must also be raised before the
Michigan Court of Appeals and the Michigan Supreme Court to satisfy
the exhaustion requirement. Wagner v. Smith, 581 F.3d 410, 414 (6th
Cir. 2009) (citing 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 court
remedies before seeking federal habeas review. Granberry v. Greer, 481
U.S. 129, 131, 134-35 (1987); Wagner, 581 F.3d at 415 (citing Harris v.
Lafler, 553 F.3d 1028, 1031 (6th Cir. 2009)). Because Petitioner has not
met his burden of proving exhaustion, the petition must be dismissed at
this time. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
Accordingly, the petition is DISMISSED WITHOUT PREJUDICE
as premature because Petitioner’s state convictions and sentences are
not yet final and also because Petitioner has not shown that he has
exhausted his claims in state court. Before Petitioner may appeal this
decision, a certificate of appealability must issue.
2253(c)(1)(a); Fed. R. App. P. 22(b).
See 28 U.S.C. §
Because no reasonable jurists could debate the correctness of the
Court’s procedural ruling, a certificate of appealability is DENIED.
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000); see 28 U.S.C. §
2253(c)(2). An appeal also could not be taken in good faith, so leave to
proceed on appeal in forma pauperis is DENIED. See Fed. R. App. P.
IT IS SO ORDERED.
Dated: June 8, 2017
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 June 8, 2017.
s/Felicia M. Moses
FELICIA M. MOSES
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