Nett #695751 v. Berghuis

Filing 42

OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEVEN MONTEZ,
Petitioner,

Case No. 1:12-cv-1198

v.

Honorable Janet T. Neff

WILLIE SMITH,
Respondent.
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OPINION
This is a habeas corpus action brought by a state prisoner under 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 Petitioner has failed to exhaust his available
state-court remedies as to all claims raised in the petition. Because Petitioner has fewer than 60
days remaining in the limitations period for filing a habeas petition, the Court will not dismiss the
action at this time, pending Petitioner’s compliance with the further directions of this Court set forth
in this opinion and attached order.

Discussion
I.

Factual allegations

Petitioner Willie Smith presently is incarcerated at the Carson City Correctional
Facility. Following a jury trial, Petitioner was convicted of two counts of first-degree criminal
sexual conduct (CSC I), MICH. COMP. LAWS § 750.520b, and one count of second-degree criminal
sexual conduct (CSC II), MICH. COMP. LAWS § 750.520c. On July 2, 2009, the Kent County Circuit
Court sentenced him to two terms of 17 years and 6 months to 50 years for the CSC I offenses and
one term of 6 to 15 years on the CSC II offense.
Petitioner appealed his convictions to the Michigan Court of Appeals, raising three
grounds: (1) improper admission of testimonial evidence of an erotic video and photographs;
(2) error in scoring Offense Variable (OV) 9; and (3) ineffective assistance of counsel at sentencing
for failing to object to the scoring of OV 9. On February 1, 2011, the court of appeals affirmed his
convictions but remanded the case for resentencing. Petitioner sought leave to appeal to the
Michigan Supreme Court, raising the same three claims. The supreme court denied leave to appeal
on July 25, 2011.
Petitioner, appearing through counsel, filed the instant habeas proceeding in the
Eastern District of Michigan on October 23, 2012.1 In his petition, Petitioner represents that,
through an apparent administrative error, he was never resentenced as ordered by the Michigan
Court of Appeals. Counsel has contemporaneously filed a motion in the Kent County Circuit Court
seeking resentencing. In addition, he states that he intends to file a motion for relief from judgment
under MICH. CT. R. 6.502, raising at least one unspecified claim. He seeks a stay of these
1
In an order issued October 30, 2012, the Eastern District of Michigan transferred the action to this Court on
venue grounds.

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proceedings allowing him 90 days in which to obtain resentencing and to file his motion for relief
from judgment and another 90 days to re-file his habeas petition after the conclusion of state-court
review.
II.

Failure to exhaust available 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,
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 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
claims to all levels of the state appellate system, including the state’s highest court. Duncan, 513
U.S. at 365-66; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); 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). Petitioner alleges that he exhausted his first three claims by presenting them
to both the Michigan Court of Appeals and the Michigan Supreme Court. He acknowledges that he
has not exhausted any of the new claims that he intends to include in his habeas corpus petition..

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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 unexhausted issues he has presented in this
application. He may file a motion for relief from judgment under MICH. CT. R. 6.500 et. seq. Under
Michigan law, one such motion may be filed after August 1, 1995. MICH. CT. R. 6.502(G)(1).
Petitioner has not yet filed his one allotted motion. Therefore, the Court concurs with Petitioner’s
assertion that he has at least one available state remedy.
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. However, since the habeas statute was amended to impose a one-year statute of
limitations on habeas claims, see 28 U.S.C. § 2244(d)(1), dismissal without prejudice often
effectively precludes future federal habeas review. This is particularly true after the Supreme Court
ruled in Duncan v. Walker, 533 U.S. 167, 181-82 (2001), that the limitations period is not tolled
during the pendency of a federal habeas petition. As a result, the Sixth Circuit adopted a stay-andabeyance procedure to be applied to mixed petitions. See Palmer v. Carlton, 276 F.3d 777, 781 (6th
Cir. 2002). In Palmer, 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. Id.; see also Rhines v. Weber, 544 U.S. 269, 277 (2005)
(adopting stay-and-abeyance procedure); Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002).

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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 July 25, 2011.
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
expired on Monday, October 24, 2011. Accordingly, Petitioner had one year, until October 24,
2012, in which to file his habeas petition. Petitioner filed the instant petition in the Eastern District
of Michigan on October 23, 2012, one day before expiration of the limitations period.
The Palmer Court has indicated that thirty days is a reasonable amount of time for
a petitioner to file a motion for post-conviction relief in state court, and another thirty days is a
reasonable amount of time for a petitioner to return to federal court after he has exhausted his statecourt remedies. Palmer, 276 F.3d at 721. See also Griffin, 308 F.3d at 653 (holding that sixty days
amounts to mandatory period of equitable tolling under Palmer).2 In the instant case, Petitioner has
less than sixty days remaining before the statute of limitations expires. Petitioner therefore would
not have the necessary 30 days to file a motion for post-conviction relief or the additional 30 days
to return to this court before expiration of the statute of limitations. As a result, were the Court to
dismiss the petition without prejudice for lack of exhaustion, the dismissal could jeopardize the
timeliness of any subsequent petition. Palmer, 276 F.3d at 781.
2
The running of the statute of limitations is tolled while “a properly filed application for State post-conviction
or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2).

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The Supreme Court has held, however, that the type of stay-and-abeyance procedure
set forth in Palmer should be available only in limited circumstances because over-expansive use
of the procedure would thwart the AEDPA’s goals of achieving finality and encouraging petitioners
to first exhaust all of their claims in the state courts. See Rhines, 544 U.S. at 277. In its discretion,
a district court contemplating stay and abeyance should stay the 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 278. Moreover, under Rhines,
if the district court determines that a stay is inappropriate, it must allow the petitioner the
opportunity to delete the unexhausted claims from his petition, especially in circumstances in which
dismissal of the entire petition without prejudice would “unreasonably impair the petitioner’s right
to obtain federal relief.” Id.
Although Petitioner has filed a motion to stay and has identified the appropriate
review standard for this Court in considering whether to grant a stay, he has failed to identify the
nature of his unexhausted claims. As a result, the Court is unable to make any determination
concerning the merit of the unexhausted claims. In addition, while Petitioner has indicated that the
state court failed to resentence Petitioner appropriately, he has not explained why he did not seek
resentencing or file a motion for relief from judgment before his habeas limitations period was
nearly expired. Moreover, Petitioner seeks a total of 180 days to complete his review of the
unexhausted claims in the state courts – three times the length of time generally authorized under
Palmer, 276 F.3d at 721. Yet he has provided no explanation for the lengthy period of stay.

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If Petitioner wishes to pursue his unexhausted claims in the state courts, he must
show cause within 28 days why he is entitled to a stay of these proceedings. Specifically, Petitioner
must show: (1) good cause for his failure to exhaust before filing his habeas petition; (2) that his
unexhausted claims are not plainly meritless; and (3) that he has not engaged in intentionally
dilatory litigation tactics. See Rhines, 544 U.S. at 277-78. In addition, he must show cause why he
is entitled to a period of stay far beyond the time authorized by Palmer, 276 F.3d at 721. If
Petitioner fails to meet the Rhines requirements for a stay or otherwise fails to timely comply with
the Court’s order, the Court will review only his exhausted claims. In the alternative, Petitioner may
file an amended petition setting forth only his exhausted claims.
An Order consistent with this Opinion will be entered.

Dated: November 29, 2012

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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