Fourcha #656416 v. McKee
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
ERIC BRIAN FOURCHA,
Case No. 1:11-cv-850
Honorable Gordon J. Quist
THE PEOPLE OF THE STATE
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.
Petitioner was convicted by a jury in the Kent County Circuit Court of two counts
of third-degree criminal sexual conduct (person 13 through 15), MICH . COMP . LAWS §
750.520d(1)(a), and two counts of accosting, enticing, or soliciting a child for immoral purposes,
MICH . COMP . LAWS § 750.145a. Petitioner appealed the conviction and sentence to Michigan Court
of Appeals, which granted the appeal only with respect to the sentence. Upon remand for
resentencing, the circuit court entered a revised sentence on May 13, 2010, imposing a term of
incarceration of ten to twenty-two years and six months for each of the criminal sexual conduct
convictions, and two to six years for each of the accosting convictions. Petitioner appealed his
conviction to the Michigan Supreme Court, which denied the appeal on June 28, 2010. Petitioner
did not seek review from the United States Supreme Court or file a motion for post-conviction relief
with the circuit court.
In his habeas petition, Petitioner raises the following five grounds for relief: (1)
denial of effective assistance of counsel because counsel failed to raise any constitutional claim in
the trial court; (2) Petitioner was denied a right to a defense because the trial court refused to allow
Petitioner to admit a letter written by one of the victims; (3) insufficient evidence to support the
convictions; (4) no DNA samples were taken from the victims to support the charge of criminal
sexual conduct; and (5) ineffective assistance of trial counsel for failure to challenge two jurors for
cause, for failure to use the victim’s letter for impeachment purposes, and for failure to articulate
to the court how the victim’s credibility would have been undermined if the victim’s letter had been
admitted into evidence.
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).
According to the petition, only claim (3) was raised on direct appeal. It appears that Petitioner
exhausted that claim by appealing it to the Michigan Supreme Court. It appears, however, that the
other claims were not exhausted because they were not raised on direct appeal.
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).
According to the petition, Petitioner has not yet filed his one allotted motion. Therefore, the Court
concludes 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 Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th
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
the Michigan Supreme Court. The Michigan Supreme Court denied his application for leave to
appeal on June 28, 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 Monday, September 27, 2010. Accordingly,
Petitioner’s judgment became final on that date and he has one year from that date, until September
27, 2011, in which to file his habeas petition.
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).1 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.
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 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
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).
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: September 13, 2011
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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