Rodriquez #222053 v. Berghuis
Filing
4
OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTHONY PAUL RODRIGUEZ,
Petitioner,
Case No. 1:11-cv-549
v.
Honorable Robert Holmes Bell
MARY BERGHUIS,
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 Anthony Paul Rodriguez presently is incarcerated at Bellamy Creek
Correctional Facility. Following a jury trial, Petitioner was convicted of unarmed robbery in
violation of Mich. Comp. Laws § 750.530, and, on July 3, 2008, he was sentenced as a fourth
habitual offender, Mich. Comp. Laws § 769.12, to a prison term of nineteen to forty years.
Petitioner appealed his conviction to the Michigan Court of Appeals, raising the claim
of ineffective assistance of trial counsel. The court of appeals affirmed the conviction on September
29, 2009. Petitioner sought leave to appeal to the Michigan Supreme Court, which denied leave to
appeal on February 26, 2010. Petitioner did not file a petition for certiorari to the United States
Supreme Court or a motion for post-conviction relief pursuant to MICH . CT . R. 6.500.
Petitioner asserts the following claims in his application for relief: (1) trial counsel
was ineffective by failing to properly advise him regarding a plea offer made by the prosecution
before trial; and (2) appellate counsel was ineffective for failing to request an evidentiary hearing
regarding the conduct of trial counsel. Petitioner raised the first claim on direct appeal, but it appears
that he raises the second claim for the first time in the instant application for habeas relief.
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
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(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).
While it appears that Petitioner has exhausted his claim of ineffective assistance of
trial counsel, it appears that he has not exhausted his claim of ineffective assistance of appellate
counsel. The latter claim was not raised in the court of appeals, and he could not exhaust this claim
by raising it for the first time on appeal to the Michigan Supreme Court. A petitioner cannot exhaust
claims by raising them for the first time on discretionary review. See Castille v. Peoples, 489 U.S.
346, 351 (1989); Dunbar v. Pitcher, No. 98-2068, 2000 WL 179026, at *1 (6th Cir. Feb. 9, 2000);
Miller v. Parker, No. 99-5007, 1999 WL 1282436, at *2 (6th Cir. Dec. 27, 1999); Troutman v.
Turner, No. 95-3597, 1995 WL 728182, at *2 (6th Cir. Dec. 7, 1995). But see Ashbaugh v. Gundy,
244 F. App’x 715, 717 (6th Cir. 2007) (declining to reach question of whether a claim raised for the
first time in an application for leave to appeal to the Michigan Supreme Court is exhausted).
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
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at least one available procedure by which to raise the unexhausted issue 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 concludes that he has at
least one available state remedy by which to pursue unexhausted claims.
Because Petitioner has one claim that is exhausted and one that is 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 Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th
Cir. 2002).
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
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for seeking such review.” Petitioner appealed his conviction to the Michigan Court of Appeals and
the Michigan Supreme Court. The Michigan Supreme Court denied his application on February 26,
2010. 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 May 27, 2010. Accordingly, Petitioner had one year, or until May 27,
2011, in which to file his habeas petition. Petitioner filed the instant petition on May 23, 2007,1 four
days before the 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). In the instant case, Petitioner has
less than sixty days remaining before expiration of the statute of limitations. 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.
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
1
Based on the signature date of Petitioner’s filing.
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to first exhaust all of their claims in the state courts. See Rhines v. Weber, 544 U.S. 269, 277
(2005). 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.
Consequently, 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 the 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. If Petitioner fails
to meet the Rhines requirements for a stay or 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: July 15, 2011
/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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