Benton #727810 v. Palmer

Filing 4

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

DEONTE ANTWAUNE BENTON,
Petitioner,

Case No. 1:12-cv-1025

v.

Honorable Robert J. Jonker

CARMEN D. PALMER,
Respondent.
____________________________________/
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.

Discussion
I.

Factual allegations

Petitioner Deonte Antwaune Benton presently is incarcerated with the Michigan
Department of Corrections at the Michigan Reformatory. He pleaded guilty in the Genesee County
Circuit Court to two counts of carjacking, MICH. COMP. LAWS § 750.529a, two counts of armed
robbery, MICH. COMP. LAWS § 750.529, one count of first-degree home invasion, MICH. COMP.
LAWS § 750.110a(2), one count of being a felon in possession of a firearm, MICH. COMP. LAWS
§ 750.224f, and one count of possessing a firearm during the commission of a felony, MICH. COMP.
LAWS § 750.227b. On April 8, 2010, he was sentenced, as a second felony offender, MICH. COMP.
LAWS § 769.10, to 13 years and 10 months to 20 years on the carjacking convictions, 12 years and
6 months to 20 years on the armed robbery offenses, 10 to 20 years on the home-invasion conviction,
1 year and 4 months to 7 years and 6 months on the felon-in-possession conviction, and 2 years on
the felony-firearm conviction.
Petitioner appealed his conviction to the Michigan Court of Appeals. In the brief filed
by appellate counsel, Petitioner raised two issues: (1) that he should be entitled to withdraw his plea
as he was not informed of the maximum possible sentence on all charges; and (2) that Petitioner
should be resentenced on the carjacking convictions because his minimum sentence exceeded twothirds of the maximum sentence, in violation of Michigan law. (Pet’r’s Br. on App., Attach. A to
Pet., docket #1-1, Page ID#16.) Petitioner also moved to file a pro se supplemental brief on appeal,
in which he contended that trial counsel had been ineffective in failing to investigate his case.
(Pet’r’s Supp. Br. on App., docket #1-2, Page ID#35-36.) In an order issued May 18, 2011, the court
of appeals denied leave to file the supplemental brief on appeal, remanded the carjacking convictions

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for resentencing, and denied the remaining claim for lack of merit.1 (Mich. Ct. App. Ord., docket
#1-1, Page ID#44.)
Petitioner, proceeding pro se, filed an application for leave to appeal to the Michigan
Supreme Court. In his application, he raised the two claims reviewed by the Michigan Court of
Appeals, together with the claim he sought to raise in his supplemental brief on appeal. (See Appl.
for Lv. to Appeal, docket #1-1, Page ID##45-46, 49, 53.) The supreme court denied leave to appeal
on October 21, 2011. (Mich. Sup. Ct. Ord., Page ID#60.)
In his habeas petition, filed September 20, 2012, Petitioner raises the three grounds
presented to the Michigan Supreme Court, together with a claim that appellate counsel had been
ineffective for failing to raise ineffective assistance of trial counsel as a claim on appeal.
II.

Exhaustion of 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

1

Following remand, Petitioner was resentenced on June 30, 2011. His minimum sentence on the carjacking
convictions was reduced to 13 years and 4 months.

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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). In his petition, Petitioner summarily contends that he has exhausted all of his
claims. However, according to the attachments to his petition, he has not done so. Specifically,
because the Michigan Court of Appeals denied his motion to file a supplemental brief on appeal, his
third ground for habeas relief – ineffective assistance of trial counsel – was not fairly presented to
or considered by that court.
Moreover, the fact that Petitioner raised ineffective assistance of trial counsel in his
application for leave to appeal to the Michigan Supreme Court was insufficient to exhaust the claim.
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 repeatedly has recognized 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, e.g., Skinner
v. McLemore, 425 F. App’x 491, 494 (6th Cir. 2011); Thompson v. Bell, 580 F.3d 423, 438 (6th Cir.
2009); Warlick v. Romanowski, 367 F. App’x 634, 643 (6th Cir. 2010); Granger v. Hurt, 215 F.
App’x 485, 491 (6th Cir. 2007); 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.

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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 to the supreme court was denied, and, thus, the issue was
not reviewed.
In addition, Petitioner has never raised his claim of ineffective assistance of appellate
counsel in any Michigan court. As a consequence, he also has not exhausted his fourth ground for
habeas relief.
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 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.
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
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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 October 24,
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, January 23, 2012. Accordingly, absent tolling, Petitioner
would have one year, until January 23, 2013, 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 state-6-

court 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).2 Petitioner has more than sixty
days remaining in his limitations period. Assuming that Petitioner diligently pursues his state-court
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 his 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
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

2

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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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
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
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be allowed to proceed further.” Id. Therefore, the Court denies Petitioner a certificate of
appealability.
A Judgment consistent with this Opinion will be entered.

Dated:

October 5, 2012

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

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