Mingo #183842 v. State of Michigan

Filing 2

OPINION; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, ymc)

Case 1:06-cv-00024-RHB-JGS

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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

KENNETH LERNARD MINGO,

) ) Petitioner, ) ) v. ) ) STATE OF MICHIGAN, ) ) Respondent. ) ____________________________________)

Case No. 1:06-cv-24 Honorable Robert Holmes Bell

OPINION This is a habeas corpus action brought by a state prisoner pursuant to 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, 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 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition must be dismissed without prejudice for failure to exhaust available state-court remedies.

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Discussion I. Factual allegations

Petitioner is incarcerated in the Deerfield Correctional Facility. On October 30, 2003, Petitioner pleaded guilty in the Oakland County Circuit Court to one count of possession with intent to deliver more than fifty grams of cocaine and one count of possession of marijuana. The trial court sentenced him on February 4, 2004, to imprisonment of fifty-one months to twenty years for the possession with intent to deliver cocaine conviction and one year for the possession of marijuana conviction. The Michigan Court of Appeals and the Michigan Supreme Court denied Petitioner's appl icatio ns for leave to appeal on May 20, 2005 and October 31, 2005, respectively. Petitioner now raises three grounds for habeas corpus relief. First, he claims that the trial court erred when it denied his motion to withdraw the guilty plea when Petitioner provided a "fair and just" reason to withdraw his plea and he was denied the effective assistance of counsel in the plea proceedings. Second, Petitioner claims that his plea was involuntary because "the judge accepting the guilty plea induced the plea of guilty with his persistence and coercive atmosphere obtained through persuasion." Third, Petitioner contends that he was denied the effective assistance of counsel when counsel: failed to object at any stage of the proceeding, refused to collect video surveillance evidence from the alleged crime scene, never discussed defense strategies with Petitioner, presented a plea agreement on the day of trial without discussing it with Petitioner, and generally failed to render adequate performance because Petitioner was not current on his legal fees. II. Exhaustion of State Court Remedies

Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 2

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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 (1971) (cited by Duncan v. Henry, 513 U.S. 364, 365 (1995) and Anderson v. Harless, 459 U.S. 4, 6 (1982)). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to all levels of the state appellate system, including the state's highest court. Duncan, 513 U.S. at 365-66; Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). "[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." O'Sullivan, 526 U.S. at 845. The district court can and must raise the exhaustion issue sua sponte, when it clearly appears that habeas claims have not been presented to the state courts. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen, 424 F.2d at 138-39. Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). According to the petition and attached application for leave to appeal in the Michigan Court of Appeals, Petitioner raised his first ground for habeas corpus relief in the Michigan Court of Appeals and the Michigan Supreme Court. Accordin gly, Petitioner exhausted his first ground for relief concerning the motion to withdraw his guilty plea. Petitioner presented his second ground for habeas corpus relief, that his plea was coerced, for the first time in his application for leave to appeal in the Michigan Supreme Court. Presentation of an issue for the first time on discretionary review to the state supreme court does not fulfill the requirement of "fair presentation." Castille v. Peoples, 489 U.S. 346, 351 (1989). 3

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Appl ying Castille, the Sixth Circuit holds that a habeas petitioner does not comply with the exhaustion requirement when he fails to raise a claim in the state court of appeals, but raises it for the first time on discretionary appeal to the state's highest court. See Dunbar v. Pitcher, No. 982068, 2000 WL 179026, at *1 (6th Cir. Feb. 9, 2000); Miller v. Parker, No. 99-5007, 1999 WL 1282436, at *2 (Dec. 27, 1999); Troutman v. Turner, No. 95-3597, 1995 WL 728182, at *2 (6th Cir. Dec. 7, 1995); accord Parkhurst v. Shillinger, 128 F.3d 1366, 1368-70 (10th Cir. 1997); Ellman v. Davis, 42 F.3d 144, 148 (2d Cir. 1994); Cruz v. Warden of Dwight Corr. Ctr., 907 F.2d 665, 669 (7th Cir. 1990). Unless the state supreme court actually grants leave to appeal and reviews the issue, it remains unexhausted in the state courts. Petitioner's application for leave to appeal was denied, and thus, his supplemental issues were not reviewed. Consequently, Petitioner failed to properly exhaust his second ground for relief. With regard to his third ground for habeas corpus relief alleging various instances of ineffective assistance of counsel, it does not appear that Petitioner raised his claim in the Michigan Court of Appeals or the Michigan Supreme Court. Petitioner, therefore, also failed to exhaust his third ground for habeas relief. An applicant has not exhausted available state remedies if he has the right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). Petitioner has at least one available procedure by which to raise the issues he has presented in this application. He may file a motion for relief from judgment under M.C.R. 6.500 et. seq. Under Michigan law, one such motion may be filed after August 1, 1995. M.C.R. 6.502(G)(1). Petitioner has not yet filed his one allotted motion. Therefore, the Court concludes that he has at least one available state remedy.

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Because Petitioner has some claims that are exhausted and some that are not, his petition is "mixed." Under Rose v. Lundy, 455 U.S. 509, 22 (1982), district courts are directed to dismiss mixed petitions without prejudice in order to allow petitioners to return to state court to exhaust remedies. Since the AEDPA was amended to impose a one-year statute of limitations on habeas claims, however, dismissal without prejudice could preclude future federal habeas review. As a result, the Sixth Circuit adopted a stay-and-abeyance procedure to be applied to mixed petitions. In Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002), the Sixth Circuit held that when the dismissal of a mixed petition could jeopardize the timeliness of a subsequent petition, the district court should dismiss only the unexhausted claims and stay further proceedings on the remaining portion until the petitioner has exhausted his claims in the state court. See also Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002). The Supreme Court recently held, however, that the type of stay-and-abeyance procedure set forth in Palmer should be available only in limited circumstance. See Rhines v. Weber, 125 S. Ct. 1528, 1534-35 (2005). In its discretion, a district court may stay a mixed petition pending prompt exhaustion of state remedies if there is "good cause" for the petitioner's failure to exhaust, if the petitioner's unexhausted claims are not "plainly meritless" and if there is no indication that the petitioner engaged in "intentionally dilatory litigation tactics." Id. at 1535. Petitioner's application is subject to the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1)(A), the one-year limitation period runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Petitioner appealed his conviction to the Michigan Court of Appeals and Michigan Supreme Court. The Michigan Supreme Court denied his application on October 31, 5

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2005. Petitioner did not petition for certiorari to the United States Supreme Court, though the ninety-day period in which he could have sought review in the United States Supreme Court is counted under § 2244(d)(1)(A). See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The ninety-day period expires on January 30, 2006. Accordingly, Petitioner will have one year thereafter, until January 30, 2007, in which to file his habeas petition. The Palmer court indicated that thirty days was a reasonable amount of time for a petitioner to file a motion for post-conviction relief in state court, and another thirty days was a reasonable amount of time for a petitioner to return to federal court after he has exhausted his statecourt remedies. Id.; see also Griffin, 308 F.3d at 653 (holding that sixty days amounts to mandatory period of equitable tolling under Palmer).1 Petitioner has more than a year remaining in the limitations period, thus, he is not in danger of running afoul of the statute of limitations so long as he diligently pursues his state court remedies. Consequently, the Court finds that a stay of the procee dings is not warranted in this case. Because a stay of these proceedings is not necessary to protect Petitioner's ability to file a future habeas petition, the Court need not consider whether Petitioner satisfies the requirements set forth in Rhines. Rather than returning to state court to present his unexhausted claims, Petitioner may file a new petition at any time before the expiration of the limitations period raising only his exhausted claim. Conclusion In light of the foregoing, the Court will summarily dismiss Petitioner's application pursuant to Rule 4 because he has failed to exhaust state court remedies.

T h e running of the statute of limitations is tolled when "a properly filed application for State post-conviction o r other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 22 4 4 ( d ) ( 2 ) .

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Certificate of Appealability Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This Court's dismissal of Petitioner's action under Rule 4 of the Rules Governing § 2254 Cases is a determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when the Court has already determined that the action is so lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is "somewhat anomalous" for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v. Comm'r of Corr. of the State of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was "intrinsically contradictory" to grant a certificate when habeas action does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would be inconsistent with a summary dismissal). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must "engage in a reasoned assessment of each claim" to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner's claims under the Slack standard.

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This Court denied Petitioner's application on the procedural ground of lack of exhaustion. Under Slack, 529 U.S. at 484, when a habeas petition is denied on procedural grounds, a certificate of appealability may issue only "when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Both showings must be made to warrant the grant of a certificate. Id. The Court finds that reasonable jurists could not debate that this Court correctly dismissed the petition on the procedural grounds of lack of exhaustion. "Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further." Id. Therefore, the Court denies Petitioner a certificate of appealabil it y. A Judgment consistent with this Opinion will be entered.

Date:

January 18, 2006

/s/ Robert Holmes Bell ROBERT HOLMES BELL CHIEF UNITED STATES DISTRICT JUDGE

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