Coches #729494 v. Harry
OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:12-cv-422
Honorable Janet T. Neff
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 Kenneth John Coches presently is incarcerated at the Pugsley Correctional
Facility. Petitioner pleaded guilty in the Kalamazoo County Circuit Court to one count of assault
with intent to commit murder, MICH. COMP. LAWS § 750.83. He was sentenced on August 2, 2009
to a prison term of 10 years and 6 months to 30 years.
Petitioner filed a delayed application for leave to appeal his conviction to the
Michigan Court of Appeals, claiming that the trial court had abused its discretion in some
unspecified fashion. On August 17, 2010, the court of appeals denied leave to appeal for lack of
merit in the grounds presented. Petitioner then filed an application for leave to appeal to the
Michigan Supreme Court raising four new grounds for relief:
THE TR[IA]L COURT U[N]LAWFULLY DEPRIVED THE DEFENDANT
OF HIS DUE PROCESS, EQUAL PROTECTION, AND OTHER
PROTECTED RIGHTS UNDER THE UNITED STATES AND MICHIGAN
CONSTITUTION[S] WHEN IT SCORED 10 POINTS ON OV-4 AND 15
POINTS ON OV-5.
THE TRIAL COURT UNLAWFULLY DEPRIVED THE DEFENDANT OF
HIS DUE PROCESS, EQUAL PROTECTION, AND OTHER PROTECTED
RIGHTS UNDER THE UNITED STATES AND MICHIGAN
CONSTITUTION[S] WHEN IT FAILED TO TAKE INTO ACCOUNT ALL
MITIGATING EVIDENCE IN SENTENCING THE DEFENDANT.
THE TRIAL COURT UNLAWFULLY VIOLATED THE UNITED
STATES AND MICHIGAN CONSTITUTION IN SENTENCING THE
DEFENDANT TO A PRISON TERM OF 10 1/2 YEARS TO 30 YEARS
ON THE AWIM CONVICTION.
THE TRIAL COURT UNLAWFULLY DEPRIVED THE DEFENDANT OF
HIS DUE PROCESS, EQUAL PROTECTION AND OTHER PROTECTED
RIGHTS UNDER TH[E] UN[IT]ED STATES AND MICHIGAN
CONSTITUTION[S] WHEN IT ORDERED HIM TO REIMBURSE THE
COUNTY ATTORNEY FEES IT PAID TO TRIAL COUNSEL WITHOUT
FIRST HOLDING A HEARING TO DETERMINE IF HE HAD THE
PRESENT AND FUTURE ABILITY TO PAY THEM.
(Ex. 1 to Pet., docket #1-1, Page ID##19-21.) The supreme court denied leave to appeal on February
In the instant habeas action, filed on April 26, 2012,1 Petitioner raises the four claims
presented for the first time in his application for leave to appeal to the Michigan Supreme Court,
together with two additional issues:
PETITIONER WAS DENIED HIS DUE PROCESS OF LAW AND HIS
CONSTITUTIONAL RIGHT[S] WHERE THE PROSECUTOR OVER
CHARGED TH[E] PETITIONER IN THIS CASE.
PETITIONER WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL
(Id., Page ID##22-23.)
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,
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 April 26,
2012, and it was received by the Court on April 30, 2012. Thus, it must have been handed to prison officials for mailing
at some time between April 26 and 30. For purposes of this opinion, the Court has given Petitioner the benefit of the
earliest possible filing date. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner
signs the document is deemed under 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)).
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 exhausted his first four habeas grounds when he
presented them in his application for leave to appeal to the Michigan Supreme Court. Presentation
of an issue for the first time on discretionary review to the state supreme court does not fulfill the
requirement of “fair presentation.” Castille v. Peoples, 489 U.S. 346, 351 (1989). Applying
Castille, the Sixth Circuit holds that a habeas petitioner does not comply with the exhaustion
requirement when he fails to raise a claim in the state court of appeals, but raises it for the first time
on discretionary appeal to the state’s highest court. See 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); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); accord Parkhurst v. Shillinger, 128
F.3d 1366, 1368-70 (10th Cir. 1997); Ellman v. Davis, 42 F.3d 144, 148 (2d Cir. 1994); Cruz v.
Warden of Dwight Corr. Ctr., 907 F.2d 665, 669 (7th Cir. 1990); 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). Unless the
state supreme court actually grants leave to appeal and reviews the issue, it remains unexhausted in
the state courts. Petitioner’s application for leave to appeal was denied, and, thus, the issue was not
reviewed. His first four habeas grounds therefore are not exhausted. In addition, Petitioner
acknowledges that his fifth and sixth habeas grounds have never been presented to the Michigan
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).
Petitioner has not yet filed his one allotted motion. Therefore, the Court concludes that he has at
least one available state remedy.
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 on February
7, 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, May 9, 2011. Accordingly, absent tolling, Petitioner had one
year, until May 9, 2012 in which to file his habeas petition. Petitioner filed the instant petition on
April 26, 2012, fourteen days before expiration of the limitations period.
In Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002), the Sixth Circuit held that
when the dismissal of a “mixed”2 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. The Court
indicated that thirty days was a reasonable amount of time for a petitioner to file a motion for postconviction relief in state court, and another thirty days was a reasonable amount of time for a
petitioner to return to federal court after he has exhausted his state-court remedies.3 The instant case
does not present a mixed petition because none of Petitioner’s claims are exhausted. It is unclear
whether Palmer applies to a “non-mixed” petition. Assuming Palmer applies, 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. Id.; see also Griffin, 308 F.3d at
653 (holding that sixty days amounts to mandatory period of equitable tolling under Palmer). 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. See 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
A “mixed petition” is a habeas corpus petition that contains both exhausted and unexhausted claims.
The running of the statute of limitations is tolled when “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).
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.
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 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
dismiss the petition for lack of exhaustion.
An Order consistent with this Opinion will be entered.
Dated: June 21, 2012
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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