Beckwith #710408 v. McKee
Filing
6
OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIAM E. BECKWITH,
Petitioner,
Case No. 1:11-cv-1031
v.
Honorable Robert J. Jonker
KENNETH McKEE,
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. The Court will grant Plaintiff’s motion
for a stay of the proceedings pending exhaustion of his claims in the state courts.
Discussion
I.
Factual allegations
Petitioner currently is incarcerated at the Bellamy Creek Correctional Facility. He
was convicted in the Kalamazoo County Circuit Court of two counts of first-degree criminal sexual
conduct (CSC I) and one count of second-degree criminal sexual conduct (CSC II). The trial court
sentenced him on November 3, 2008, to concurrent prison terms of eleven to thirty years for each
of the CSC I convictions and eighty-four months to fifteen years for the CSC II conviction. The
Michigan Court of Appeals affirmed Petitioner’s convictions on July 29, 2010. Petitioner did not
seek leave to appeal in the Michigan Supreme Court.
Petitioner now raises the following ten grounds for habeas corpus relief in his
amended petition (docket #5):
I.
DUE PROCESS VIOLATED WHERE CONVICTION BASED ON
PREJUDICIAL UNNOTICED, IMPROPER BAD [ACTS] EVIDENCE,
WHEN PROSECUTOR ELICITED TESTIMONY THAT [PETITIONER]
MOLESTED OTHER SISTERS.
II.
DUE PROCESS DENIED WHERE PROSECUTOR COMMITTED
MISCONDUCT BY ELICITING INADMISSIBLE OPINION TESTIMONY
FROM POLICE OFFICER.
III.
THE COURT ALLOWED THE PROSECUTION TO EXPAND THE
OFFENSE DATE ONLY AFTER CHILD VICTIM TESTIFIED AND
[PETITIONER] HAD SUCCESSFULLY DEFENDED HIMSELF BY
PROVING THAT THE OFFENSE COULD NOT HAVE OCCURRED
WHEN ALLEGED.
IV.
TRIAL COURT ALLOWED INADMISSIBLE EVIDENCE OF OFFICER’S
TESTIMONY REGARDING PRIOR EXPLANATIONS FOR DELAYED
REPORTING PURSUANT TO MRE 803(3).
V.
PETITIONER WAS DEPRIVED OF HIS SIXTH AMENDMENT RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL, AND HIS SIXTH
AMENDMENT RIGHT TO A PUBLIC TRIAL WHEN THE JUDGE
CLOSED THE COURTROOM TO THE PUBLIC ON TWO OCCASIONS
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DURING VOIR DIRE WITHOUT A HEARING OR COMPELLING
REASON, AND WHERE COUNSEL FAILED TO OBJECT.
VI.
TRIAL COUNSEL DEPRIVED PETITIONER OF HIS SIXTH
AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE AND DEPRIVED
PETITIONER OF THE RIGHT TO CHALLENGE THE STATE’S
EVIDENCE BY CONDUCTING FORENSIC EXAMINATION OF THE
ORIGINAL COPY OF A JOURNAL WHICH ALLEGEDLY SHOWED
THE DATE OF THE ALLEGED CRIME WHERE SOURCE OF THE
JOURNAL (CHILD’S MOTHER) HAD REPEATEDLY BEEN ARRESTED
AND/OR CONVICTED AND/OR FOUND TO HAVE LIED AND
OTHERWISE FALSIFIED DOCUMENTS, COMMITTED FRAUD, AND
HAD PARTICIPATED IN THE CHILD MAKING THE SAME
ALLEGATIONS AGAINST ANOTHER MAN.
VII.
PETITIONER WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL AND
TO THE []EFFECTIVE ASSISTANCE OF COUNSEL FOR LACK OF
OBJECTION AND NO MOTION FOR MISTRIAL OR INSTRUCTION,
WHERE A POTENTIAL JUROR -- A COURT-APPOINTED SPECIAL
ADVOCATE IN ABUSE CASES -- HELD HERSELF OUT TO BE AN
EXPERT AND STATED TO THE JURY POOL THAT ALL OF THE
THERAPISTS THINK THAT CHILDREN DO NOT LIE ABOUT SEXUAL
ABUSE.
VIII.
PETITIONER WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF
COUNSEL, WHERE COUNSEL FAILED TO ADEQUATELY
INVESTIGATE AND SUPPORT WITH DOCUMENTATION EVIDENCE
OF THE AMERICAN CAMPGROUNDS BEING SO FULL THAT
PETITIONER WAS UNABLE TO ACCESS THE CAMPGROUND
DURING MOST OR ALL OF THE PERIOD IN QUESTION, WHICH
WOULD REFUTE THE CLAIM BY THE COMPLAINANT THAT THERE
WERE NO OTHER CUSTOMERS USING THE CAMPGROUND.
IX.
PETITIONER WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF
COUNSEL WHERE COUNSEL OBJECTED LATE OR NOT AT ALL TO
THE PROSECUTOR’S COACHING THE JURORS TO ASSUME FACTS
NOT IN EVIDENCE AND WHERE THE PROSECUTOR REPEATEDLY
REDEFINE[D] REASONABLE DOUBT.
X.
PETITIONER WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL WHO WORKED WITH A CONFLICT OF
INTEREST AND WHO FAILED TO TIMELY FILE PETITIONER’S
MOTION FOR ORAL ARGUMENT BEFORE THE COURT OF
APPEALS, AND WHERE COUNSEL FAILED TO NOTIFY PETITIONER
OF THE APPELLATE COURT’S DECISION OR TO INFORM
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PETITIONER OF THE NEXT STEP IN THE PROCESS, CAUSING
PETITIONER TO DEFAULT AND TO MISS THE 1-YEAR AEDPA
FILING DEADLINE.
Petitioner raised only Grounds I though IV on direct appeal in the Michigan Court
of Appeals. He filed a separate motion (docket #2) seeking a stay of the proceedings while he
exhausts his claims in the state courts.1
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
1
W hile not included as a ground for relief in his amended petition, Petitioner states in his motion for a stay that
he intends to raise an eleventh claim relating to the seizure of funds under the State Correctional Facility Reimbursement
Act, M ICH . C O M P . L AW S § 800.403(3). However, because the seizure of Petitioner’s private funds to reimburse the state
for the cost of his incarceration does not concern his state-court conviction or the duration of his confinement, the issue
may not be raised in a habeas corpus action. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973).
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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 concedes that Grounds V through X are unexhausted because they were
not raised in his direct appeal to the Michigan Court of Appeals. In order to be properly exhausted,
Grounds V through X also had to be raised in the Michigan Supreme Court. See Duncan, 513 U.S.
at 365-66. Moreover, while Petitioner raised Grounds I through IV in the Michigan Court of
Appeals, those claims also are unexhausted because they were not raised in the Michigan Supreme
Court. Id. Consequently, none of Plaintiff’s grounds for relief were properly exhausted in the state
courts. 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).
Because Petitioner has not yet filed his one allotted motion, he may exhaust his claim by filing a
motion for relief from judgment.
Under Rose v. Lundy, 455 U.S. 509, 22 (1982), district courts are directed to dismiss
mixed petitions2 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
2
A “mixed petition” is a habeas corpus petition that contains both exhausted and unexhausted claims.
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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 stay the proceedings 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). While the instant case does not present a mixed petition because none
of Petitioner’s claims are exhausted, the Court will assume that Palmer’s stay-and-abeyance
procedure also applies to a “non-mixed” petition because the impact would be the same if the Court
were to dismiss his petition.
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.” The Michigan Court of Appeals affirmed Petitioner’s conviction on July
29, 2010, and he did not seek leave to appeal in the Michigan Supreme Court. Where a petitioner
has failed to pursue an avenue of appellate review available to him, the time for seeking review at
that level is counted under § 2244(d)(1)(A). See 28 U.S.C. § 2244(d)(1)(A) (time for filing a petition
pursuant to § 2254 runs from “the date on which the judgment became final by the conclusion of
direct review or the expiration of time for seeking such review” ) (emphasis added). However, such
a petitioner is not entitled to also count the 90-day period during which he could have filed a petition
for certiorari to the United States Supreme Court. See United States v. Cottage, 307 F.3d 494, 499
(6th Cir. 2002) (holding that, in the context of a motion under 28 U.S.C. § 2255, where a petitioner
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has failed to file a direct appeal to the court of appeals, the time for filing a petition does not include
the ninety-day period for seeking certiorari in the United States Supreme Court because no judgment
exists 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
§§ 2244(d)(1)(A) and 2255). Here, since the Supreme Court will review only final judgments of the
“highest court of a state in which a decision could be had . . . ,” 28 U.S.C. § 1257(a), the decision
must be considered final at the expiration of the 56-day period for seeking review in the Michigan
Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003); Kapral v. United States,
166 F.3d 565, 577 (3rd Cir. 1999); Ovalle v. United States, No. 02-1270, 2002 WL 31379876, at *2
(6th Cir. Oct. 21, 2002) (citing Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000)).
Petitioner’s conviction therefore became final on September 23, 2010.
Petitioner had one year, until September 23, 2011 in which to file his petition. 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). Petitioner dated
his application on September 19, and it was received by the Court on September 26, 2011. Thus,
it must have been handed to prison officials for mailing at some time between September 19 and 26.
For purposes of this opinion, the Court will give Petitioner the benefit of the earliest possible filing
date. Accordingly, the petition was timely filed on September 19, 2011. See Brand v. Motley, 526
F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner signs the document is deemed under
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Sixth Circuit law to be the date of handing to officials) (citing Goins v. Saunders, 206 F. App’x 497,
498 n.1 (6th Cir. 2006)).3
The Palmer Court stated 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).4 Because the statute of limitations
expired on September 23, 2011, Petitioner does 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 would 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
failure to exhaust, if the petitioner’s unexhausted claims are not “plainly meritless” and if there is
3
The issue of the statute of limitations shall remain open to further review by the Court in the event that
Respondent can show that Petitioner handed his habeas petition to prison officials for mailing after September 23, 2011.
4
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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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.
Petitioner asserts ineffective assistance of appellate counsel as cause for his failure
to exhaust his claims on direct appeal. He contends that his appellate counsel failed to raise
meritorious issues on appeal, failed to notify him when his appeal was decided by the Michigan
Court of Appeals and failed to inform him of the next step in the process, which caused Petitioner
to miss the filing deadline in the Michigan Supreme Court. Petitioner’s allegations are sufficient to
establish cause. In addition, Petitioner’s unexhausted claims are not plainly meritless and there is
no indication that he has engaged in intentionally dilatory litigation tactics. Because Petitioner has
satisfied the Rhines requirements, the Court will grant a stay of the proceedings while Petitioner
exhausts his state-court remedies.
Conclusion
The Court finds that Petitioner has failed to exhaust his state-court remedies with
regard to all ten grounds for habeas corpus relief set forth in his petition. The Court will grant
Petitioner a stay of these proceedings pending exhaustion of his state-court remedies. A separate
order will issue setting forth the terms of the stay.
Dated:
December 12, 2011
/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
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