Keith #624999 v. Harry

Filing 5

OPINION ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL EDWARD KEITH, Jr.,
Petitioner,

Case No. 1:12-cv-71

v.

Honorable Paul L. Maloney

SHIRLEE HARRY,
Respondent.
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OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
Before the Court is Petitioner’s motion to hold these proceedings in abeyance pending exhaustion
of claims in state court (docket #3). For the reasons set forth herein, Petitioner’s motion will be
granted.
Discussion
I.

Background

In 2006, a jury convicted Petitioner Michael Edward Keith, Jr., of three counts of
first-degree criminal sexual conduct involving a person under the age of thirteen (CSC I), MICH.
COMP. LAWS § 750.520b(1)(a). On November 20, 2006, the Ottawa County Circuit Court sentenced
Petitioner to three concurrent prison terms of nine to twenty years. Petitioner appealed his
conviction to the Michigan Court of Appeals, raising the following issues:
(1)

The trial court erred in amending the information following
a motion for directed verdict of acquittal. “The original
information alleged three counts of vaginal sexual
penetration. The [c]ourt denied the motion for a directed
verdict and amended the information to include
‘penile/genital opening[.]’” (Pet. 2, docket #1.)

(2)

Petitioner’s right to a fair trial was violated when the trial
court amended the information.

(3)

There was insufficient evidence to convict Petitioner of
CSC I.

(4)

The trial court should have granted a new trial.

The Court of Appeals affirmed the conviction in 2008. Thereafter, Petitioner appealed his
conviction to the Michigan Supreme Court raising the same issues. That court denied leave to
appeal on October 26, 2010. Petitioner filed the instant petition on January 24, 2012. He has also
filed a motion to hold these proceedings in abeyance so that he may exhaust additional claims
through a motion for relief from judgment that he filed in state court. He asserts that he raised the
following issues in that motion:
(i)

The trial court should hear the motion for relief from
judgment under the statutory provisions for granting a new
trial rather than the court rules.

(ii)

The trial court erred in refusing to permit Petitioner to crossexamine the complainant’s mother about a prior sexual
assault which happened to her which could have influenced
her bias and disposition towards finding evidence of a rape of
her daughter.

(iii)

Appellate counsel was ineffective in failing to object to the
admission of unrelated sexual conduct on the part of
Petitioner.

(iv)

Trial counsel was ineffective in failing to introduce evidence
concerning the danger of repressed memories.

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(v)

Appellate counsel was ineffective in failing to raise the
foregoing issues on appeal.

(Mot. to Hold Habeas Corpus in Abeyance 2-3, docket #3; see also Pet. 3-4, docket #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
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.
By presenting issues (1) through (4), supra, on appeal to the Michigan Court of
Appeals and the Michigan Supreme Court, Petitioner exhausted those claims. Issues (i) through (v)
were not raised on direct appeal, however. Petitioner has not exhausted available state remedies if
he has the right under state law to raise, by any available procedure, the question presented. 28

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U.S.C. § 2254(c). Petitioner’s motion for relief from judgment under Rule 6.500 of the Michigan
Court Rules is one available procedure by which to present issues (i) through (v) to the state courts.
Thus, the latter issues have not been exhausted.
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
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
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 October 26,

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2010. It appears that 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 that 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, January 24, 2011. Accordingly, Petitioner had one year in which to file his
habeas petition. Petitioner filed his petition on January 24, 2012, the last day 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. Petitioner asserts that
he has already filed his motion for post-conviction relief, but the statute of limitations ended on the
day that he filed his petition. Petitioner therefore would not have the necessary 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
failure to exhaust, if the petitioner’s unexhausted claims are not “plainly meritless” and if there is

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no indication that the petitioner engaged in “intentionally dilatory litigation tactics.” Id. at 278.
Petitioner asserts that his appellate counsel was ineffective for failing to raise certain
issues on direct appeal. Moreover, his current counsel miscalculated the time for filing a habeas
petition, but filed the petition on the last day of the limitations period when he realized his error.
Counsel also asserts that he “simultaneously” filed the motion for relief from judgment in state court
(docket #3, Page ID#17);1 however, that motion does not toll the limitations period because it was
received by the state court shortly after the limitations period expired.2 Upon review, the Court
concludes that there is good cause for Petitioner’s failure to exhaust before filing his petition.
Moreover, Petitioner’s claims are not plainly meritless, and there is no indication that Petitioner
engaged in intentional dilatory litigation tactics. Accordingly, Petitioner’s motion to hold these
proceedings in abeyance will be granted.
An Order consistent with this Opinion will be entered.

Dated:

February 9, 2012

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

1

A copy of the motion for relief from judgment is attached to Petitioner’s motion to hold this action in
abeyance (see docket #3-1). The motion for relief from judgment is signed and dated January 25, 2012 (docket #3-1,
Page ID#67).
2

The running of the statute of limitations is tolled while “a properly filed application for State postconviction 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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