Gilbert #593775 v. Preslesnik

Filing 7

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES OF AMERICA U N IT E D STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

ELBERT GILBERT, P e ti t i o n e r , v. JOHN PRESLESNIK, Respondent. ____________________________________/ O P IN IO N T h is 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 p re lim in a ry review of the petition to determine whether "it plainly appears from the face of the p e titio n and any exhibits annexed to it that the petitioner is not entitled to relief in the district court." R u l e 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be s u m m a rily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court h a s the duty to "screen out" petitions that lack merit on their face). A dismissal under Rule 4 in c lu d e s those petitions which raise legally frivolous claims, as well as those containing factual a lle ga tio n s that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1 9 9 9 ) . After undertaking the review required by Rule 4, the Court concludes that Petitioner has f a ile d to exhaust his available state-court remedies as to all claims raised in the petition. Because P e titio n e r has fewer than 60 days remaining in the limitations period for filing a habeas petition, the C a s e No. 1:08-cv-743 H o n o ra b le Robert Holmes Bell

C o u r t will not dismiss the action at this time, pending Petitioner's compliance with the further d ire c tio n s of this Court set forth in this opinion and attached order. Discussion I. Fa c tu a l allegations

P e titio n e r currently is incarcerated with the Michigan Department of Corrections (M D O C ) at the Richard A. Handlon Correctional Facility. Petitioner pleaded guilty to three counts o f criminal sexual conduct, MICH. COMP. LAWS § 750.520d(1)(a), in the Emmet County Circuit C o u rt. According to the Michigan Court of Appeals (MCOA), he was sentenced on November 7, 2 0 0 6 to concurrent terms of incarceration of ten to fifteen years. (MCOA Order, Feb. 6, 2008.) P e titio n e r sought a delayed leave to appeal from the MCOA on December 13, 2007. T h e Court of Appeals dismissed his application because it was untimely. (Id.) Petitioner sought le a v e to appeal the dismissal of his action from the Michigan Supreme Court on February 27, 2008. T h e Michigan Supreme Court denied Petitioner's application on May 27, 2008. According to his a p p lic a tio n for habeas relief, Petitioner has not filed a motion under MICH. CT. R. 6.500. II. Fa ilu r e to exhaust available state-court remedies

B e f o r e the Court may grant habeas relief to a state prisoner, the prisoner must exhaust re m e d ie s available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 8 4 2 (1999). Exhaustion requires a petitioner to "fairly present" federal claims so that state courts h a v e a "fair opportunity" to apply controlling legal principles to the facts bearing upon a petitioner's c o n stitu tio n a l claim. See O'Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77 (1 9 7 1 ), cited in 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 -2-

c la im s 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 4 8 0 , 483 (6th Cir. 1990). "[S]tate prisoners must give the state courts one full opportunity to resolve a n y constitutional issues by invoking one complete round of the State's established appellate review p r o c e s s ." O'Sullivan, 526 U.S. at 845. The district court can and must raise the exhaustion issue s u a sponte, when it clearly appears that habeas claims have not been presented to the state courts. S e e 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, 1 6 0 (6th Cir. 1994). Petitioner alleges four grounds for habeas relief: (1) that he received ineffective a s s is ta n c e of counsel; (2) that he was not given proper Miranda rights by the Michigan State Police; (3 ) that the trial court misscored several offense variables and he was sentenced based on inaccurate in fo rm a tio n ; and (4) that the Michigan State Police unlawfully arrested him without a search or a rr e s t warrant. Petitioner alleges that each of these grounds was raised before the state courts in his d ire c t appeal. However, because his appeal was dismissed as untimely, his claims were not fairly p re se n te d in the MCOA. Petitioner sought leave to appeal from the Michigan Supreme Court. However, p re se n ta tio n of an issue for the first time on discretionary review to the state supreme court does not fu lfill the requirement of "fair presentation." Castille v. Peoples, 489 U.S. 346, 351 (1989). A p p lyi n g Castille, the Sixth Circuit holds that a habeas petitioner does not comply with the e xh a u stio n requirement when he fails to raise a claim in the state court of appeals, but raises it for th e first time on discretionary appeal to the state's highest court. See Dunbar v. Pitcher, No. 982 0 6 8 , 2000 WL 179026, at *1 (6th Cir. Feb. 9, 2000); Miller v. Parker, No. 99-5007, 1999 WL -3-

1 2 8 2 4 3 6 , at *2 (Dec. 27, 1999); Troutman v. Turner, No. 95-3597, 1995 WL 728182, at *2 (6th Cir. D e c . 7, 1995); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); accord Parkhurst v. Shillinger, 1 2 8 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); but see Ashbaugh v. Gundy, 2 4 4 , F. App'x 715, 717 (6th Cir. 2007) (declining to reach question of whether a claim raised for th e first time in an application for leave to appeal to the Michigan Supreme Court is exhausted). U n le ss the state supreme court actually grants leave to appeal and reviews the issue, it remains u n e x h a u s te d in the state courts. Petitioner's application for leave to appeal was denied, and, thus, th e issue was not reviewed. A n applicant has not exhausted available state remedies if he has the right under state la w to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). Petitioner h a s at least one available procedure by which to raise the unexhausted issues he has presented in this a p p lic a tio n . He may file a motion for relief from judgment under MICH. CT. R. 6.500 et. seq. Under M ic h iga n law, one such motion may be filed after August 1, 1995. MICH. CT. R. 6.502(G)(1). P e titio n e r has not yet filed his one allotted motion. Therefore, the Court concludes that he has at le a st one available state remedy. Petitioner's application is subject to the one-year statute of limitations provided in 2 8 U.S.C. § 2244(d)(1). Under § 2244(d)(1)(A), the one-year limitation period runs from "the date o n which the judgment became final by the conclusion of direct review or the expiration of the time fo r seeking such review." Petitioner was sentenced on November 7, 2006. He filed an application fo r leave to appeal with the Michigan Court of Appeals, which was dismissed on February 6, 2008 b e c a u s e it was untimely. In other words, while Petitioner filed an appeal, he did not properly appeal -4-

h is conviction in the Michigan Court of Appeals. Where a petitioner has failed to properly pursue a n avenue of appellate review available to him, the time for seeking review at that level is counted u n d e r § 2244(d)(1)(A). See 28 U.S.C. § 2244(d)(1)(A) (time for filing a petition pursuant to § 2254 ru n s from "the date on which the judgment became final by the conclusion of direct review or the e x p ir a tio n of time for seeking such review." ) (emphasis added). Petitioner had one year, until N o v e m b e r 7, 2007, in which to a file delayed application for leave to appeal in the Michigan Court o f Appeals. See MICH. CT. R. 7.205(F)(3). Because Petitioner failed to file a timely appeal to the M ic h iga n Court of Appeals, no judgment on the merits of Petitioner's claims existed from which h e could seek further review in the Michigan Supreme Court. Thus, Petitioner may not count the tim e that his appeal was pending in the Michigan Supreme Court; nor may he count the 90-day p e rio d for filing a petition for a writ of certiorari. See United States v. Cottage 307 F.3d 494, 499 (6 th Cir. 2002) (holding that, in the context of a motion under 28 U.S.C. § 2255, where a petitioner h a s failed to file a direct appeal to the court of appeals, the time for filing a petition does not include th e ninety-day period for seeking certiorari in the United States Supreme Court because no judgment e x ists from which he could seek further review in the United States Supreme Court); United States v . Clay, 537 U.S. 522, 530-31(2003) (holding that finality is analyzed the same under §§ 2 2 4 4 (d ) ( 1 ) ( A ) and 2255). Consequently, Petitioner's conviction became final on November 7, 2007. P e titio n e r had one year after his petition became final, until November 7, 2008, in w h ic h to file his habeas petition. Petitioner timely filed the instant petition on July 21, 2008.1
1

Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002); In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).

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In Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002), the Sixth Circuit held that w h e n the dismissal of a "mixed" 2 petition could jeopardize the timeliness of a subsequent petition, t h e district court should dismiss only the unexhausted claims and stay further proceedings on the r e m a in in g portion until the petitioner has exhausted his claims in the state court. The Court in d ic a te d that thirty days was a reasonable amount of time for a petitioner to file a motion for postc o n v ic tio n relief in state court, and another thirty days was a reasonable amount of time for a p e titio n e r to return to federal court after he has exhausted his state-court remedies.3 The instant case d o e s not present a mixed petition because none of Petitioner's claims are exhausted. It is unclear w h e th e r Palmer applies to a "non-mixed" petition. Assuming Palmer applies, Petitioner has less th a n sixty days remaining before the statute of limitations expires in the instant case. Petitioner th e re fo re would not have the necessary 30 days to file a motion for post-conviction relief or the a d d itio n a l 30 days to return to this court before expiration of the statute of limitations. As a result, w e re the Court to dismiss the petition without prejudice for lack of exhaustion, the dismissal could je o p a rd ize the timeliness of any subsequent petition. See Palmer 276 F.3d at 781. The Supreme Court recently held, however, that the type of stay-and-abeyance p r o c e d u re set forth in Palmer should be available only in limited circumstances because o v e r-e xp a n siv e use of the procedure would thwart the AEDPA's goals of achieving finality and

1

(...continued)

P e titio n er dated his original application on July 21, 2008, and it was received by the Court on August 4, 2008. Thus, it must have been handed to prison officials for mailing at some time between July 21 and August 4. For purposes of th is report and recommendation, the Court has given Petitioner the benefit of the earliest possible filing date.
2 3

A "mixed petition" is a habeas corpus petition that contains both exhausted and unexhausted claims.

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. § 2244(d)(2).

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e n c o u ra gin g petitioners to first exhaust all of their claims in the state courts. See Rhines v. Weber, 5 4 4 U.S. 269, 277 (2005). In its discretion, a district court contemplating stay and abeyance should s ta y the mixed petition pending prompt exhaustion of state remedies if there is "good cause" for the p e titio n e r'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. a t 278. Under Rhines, if the district court determines that a stay is inappropriate, the district court m u s t allow the petitioner to delete the unexhausted claims from his petition, especially in c irc u m s ta n c e s in which dismissal of the entire petition without prejudice would "unreasonably im p a ir the petitioner's right to obtain federal relief." Id. This is the case here, since the limitations p e rio d will soon expire. Consequently, if Petitioner wishes to pursue his unexhausted claims in the state c o u r ts , he must show cause within 21 days why he is entitled to a stay of these proceedings. S p e c ific a lly, Petitioner must show: (1) good cause for the his failure to exhaust before filing his h a b e a s petition; (2) that his unexhausted claims are not plainly meritless; and (3) that he has not e n ga ge d in intentionally dilatory litigation tactics. See Rhines, 544 U.S. at 277-78. If Petitioner fails to meet the Rhines requirements for a stay or fails to timely comply with the Court's order, the Court w ill dismiss his petition with prejudice because he currently has no exhausted claims. A n Order consistent with this Opinion will be entered.

D a te d : S e p te m b e r 30, 2008

/s/ Robert Holmes Bell ROBERT HOLMES BELL U N IT E D STATES DISTRICT JUDGE

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