Lienemann #673962 v. McKee

Filing 5

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

JAMES FRANK LIENEMANN,
Petitioner,

Case No. 1:12-cv-305

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 will dismiss the petition without prejudice for failure to exhaust
available state-court remedies.

Background
Petitioner James Frank Lienemann is a prisoner incarcerated by the Michigan
Department of Corrections. In 2009, he was charged with several counts of criminal conduct,
including one count of manufacturing or possessing a Molotov cocktail causing damage to the
property of another person, Mich. Comp. Laws § 750.211a(2)(c), and one count of felony-firearm,
Mich. Comp. Laws § 750.227b. The charges arose out of an incident in which Petitioner helped
another individual make an incendiary grenade known as a Molotov cocktail, and then fired several
bullets into the window of a house so that the other individual could toss the grenade into the house.
Petitioner pleaded guilty to the aforementioned counts, and on June 1, 2009, the Kalamazoo County
Circuit Court sentenced petitioner to 8 to 20 years of imprisonment for the count related to the
Molotov cocktail, and 2 years of imprisonment for the felony-firearm count. Petitioner’s appointed
counsel allegedly advised Petitioner that there were no issues meriting review, and sent Petitioner
a form in which Petitioner agreed to waive his right to appellate review. The trial court allowed
Petitioner’s counsel to withdraw from the case, and Petitioner proceeded to file an appeal on his own
behalf before the Michigan Court of Appeals. The appeal was denied on October 14, 2010, for lack
of merit in the grounds presented. Petitioner sought further review by the Michigan Supreme Court,
and that court denied leave to appeal on March 29, 2011. On March 26, 2012, Petitioner filed a
motion for relief from judgment in the state court pursuant to Rule 6.502 of the Michigan Court
Rules, and that motion remains pending.
In the instant petition, Petitioner raises the following grounds for relief:
I.

Petitioner was denied his right to due process where: (1) his conviction was
not supported by evidence sufficient to establish guilt beyond a reasonable

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doubt; (2) his conviction was obtained by an unknowing, involuntary, and
unintelligent plea; and (3) the trial judge abused his discretion in accepting
a plea where a factual basis for the plea did not exist.
II.

Petitioner was denied his right to due process where: (1) the prosecutor
denied him access to critical, “exculpatory” evidence needed to file his
application for leave for appeal; and (2) the prosecutor deliberately elicited
false testimony regarding the nature of the damages to prejudice Petitioner
and deny him a fair trial.

III.

Petitioner’s plea was involuntary and/or the product of ineffective assistance
of counsel, because: (1) counsel failed to object to the charged offense and
failed to raise an issue regarding damages; (2) counsel failed to advise
Petitioner of the nature of the charges against him and the elements needed
to convict on those charges; and (3) counsel improperly persuaded
Petitioner’s mother to convince Petitioner to accept the plea.

IV.

Petitioner was denied due process and/or effective assistance of counsel
where: (1) appellate counsel improperly advised Petitioner that his appeal
lacked issues meriting review and sent Petitioner a form to sign which caused
Petitioner to unknowingly waive his right to appellate review; and
(2) appellate counsel improperly withdrew without identifying any issues
meriting review and Petitioner was forced to proceed without assistance.

V.

Petitioner was denied due process and/or effective assistance of counsel
where the trial court denied Petitioner’s request for re-appointment of
appellate counsel, thereby forcing Petitioner to proceed without counsel on
appeal.

(See Pet.5-8, docket #1.)
Discussion
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,
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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 raised approximately eleven issues on appeal (see Pet. 23), and that he has raised approximately five issues in his motion for relief from judgment (see Pet.
3-4). It appears that at least some of the grounds for relief raised in the instant petition (e.g., grounds
IV and V, which concern the right to effective assistance of appellate counsel) were not presented
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 any unexhausted issues that he has presented in
the instant petition. 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).
Indeed, Petitioner indicates that he has already filed such a motion. Therefore, the Court concludes
that he has at least one available state remedy.1

1

The Court makes no determination at this time as to whether Petitioner’s motion for relief from judgment
adequately raises all of the unexhausted claims set forth in the petition.

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Because Petitioner appears to have 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 (2007)
(approving stay-and-abeyance procedure); 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 limitations 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 March 29, 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, June 27, 2011. Accordingly, absent tolling,
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Petitioner would have one year, until June 26, 2012, 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 a mandatory period of equitable tolling under Palmer). Petitioner has more than sixty
days remaining in his limitations period. Indeed, assuming Petitioner filed a timely and proper
motion for relief from judgment, that motion tolls the statute of limitations for as long as it remains
pending. See 28 U.S.C. § 2244(d)(2). Thus, assuming that Petitioner diligently pursues his statecourt remedies and promptly returns to this Court after the Michigan Supreme Court issues its
decision, he is not in danger of running afoul of the statute of limitations. Therefore a stay of these
proceedings is not warranted. Should Petitioner decide not to pursue any unexhausted claims in the
state courts, he may file a new petition raising only exhausted claims at any time before the
expiration of the limitations period.
Conclusion
For the foregoing reasons, the Court will dismiss the petition for failure to exhaust
available state-court remedies.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination
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that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court already has determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr., 865 F.2d 44, 46 (2d Cir. 1989) (it was
“intrinsically contradictory” to grant a certificate when habeas action does not warrant service under
Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would be
inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved the issuance of blanket denials
of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard.
This Court denied Petitioner’s application on the procedural ground of lack of
exhaustion. Under Slack, 529 U.S. at 484, when a habeas petition is denied on procedural grounds,
a certificate of appealability may issue only “when the prisoner shows, at least, [1] that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and [2] that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Both showings must be made to warrant the grant of a
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certificate. Id. The Court finds that reasonable jurists could not debate that this Court correctly
dismissed the petition on the procedural ground of lack of exhaustion. “Where a plain procedural bar
is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could
not conclude either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.” Id. Therefore, the Court will deny Petitioner a certificate of
appealability.
An Order and Judgment consistent with this Opinion will be entered.

Dated:

April 17, 2012

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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