Jackson #638042 v. McKee
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:12-cv-1173
Honorable Gordon J. Quist
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.
Petitioner is incarcerated in the Bellamy Creek Correctional Facility. He pleaded
guilty in the Wayne County Circuit Court to armed robbery, MICH . COMP . LAWS § 750.529; car
jacking, MICH . COMP . LAWS § 750.529a; receiving and concealing stolen property (motor vehicle),
MICH . COMP . LAWS § 750.5357; felon in possession of a firearm, MICH . COMP . LAWS § 750.224F;
and possession of a firearm during the commission of a felony, MICH . COMP. LAWS § 750.227b. The
trial court sentenced Petitioner on November 4, 2011, to concurrent prison terms of ten to twenty
years for the armed-robbery and car-jacking convictions, and three to five years for the felon-inpossession and receiving-and-concealing-stolen-property convictions. The trial court also imposed
a consecutive two-year term for the felony-firearm conviction.
Petitioner claims that he submitted a timely request to the trial court for appointment
of appellate counsel, but received no reply. He made further inquiries, but, again, received no
response from the court. Petitioner also submitted several requests to the trial court for a copy of
the complete trial court record in his criminal case, but received no response. As a result, Petitioner
did not file a direct appeal of his conviction.
In his application for habeas corpus relief, Petitioner contends that the trial court
violated his right to appointment of appellate counsel on direct appeal as set forth by the Supreme
Court in Halbert v. Michigan, 545 U.S. 605 (2005) (equal protection and due process principles
require the appointment of counsel for indigent defendants seeking first-tier review in the Michigan
Court of Appeals of convictions based on guilty pleas). In his second ground for habeas relief,
Petitioner contends that the trial court failed to provide him with a copy of the record in violation
of Griffin v. Illinois, 351 U.S. 12, 20 (1956).
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
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 that he has exhausted his available state court
remedies. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner acknowledges that he has
not raised his claims in the state courts, but seeks to invoke the exceptions to the exhaustion
requirement where “there is an absence of available State corrective process,” or “circumstances
exist that render such process ineffective to protect the rights of the applicant.” § 2254(b)(1)(B)(i)(ii). These exceptions do not apply as Petitioner 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. Petitioner maintains
that trial court’s failure to provide him with a copy of the trial record would render that process
ineffective. This Court disagrees. A copy of the trial record is not necessary to file a motion for
relief from judgment asserting the claims set forth in Petitioner’s application for habeas corpus
relief. The very nature of Petitioner’s claims is that he was denied the constitutionally-required tools
to pursue a direct appeal. Moreover, when it is uncertain whether the Michigan courts will consider
the petitioner’s habeas claims on the merits, this Court will presume that such state relief is available
to the petitioner. Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995); Brewer v. Dahlberg, 942
F.2d 328, 340 (6th Cir. 1991). The state courts should have a full and fair opportunity to cure any
constitutional infirmities in petitioner’s conviction. See Brewer, 942 F.2d at 340. Petitioner,
therefore, must attempt to exhaust his claims by filing a motion for relief from judgment.
Petitioner’s application is subject to the one-year statute of limitations provided in
28 U.S.C. § 2244(d)(1). In most cases, § 2244(d)(1)(A) provides the operative date from which the
one-year limitations period is measured. See Dodd v. United States, 545 U.S. 353, 357 (2005).
Under that provision, 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.” 28 U.S.C. § 2244(d)(1)(A). Petitioner was sentenced on November 4, 2011. He did not
file a direct appeal of his conviction to either the Michigan Court of Appeals or the Michigan
Supreme Court. Where a petitioner has not pursued 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). Petitioner had six months, until May 4, 2012, in which to file a delayed
application for leave to appeal in the Michigan Court of Appeals. See MICH . CT . R. 7.205(F)(3).
Because Petitioner failed to file a timely appeal to the Michigan Court of Appeals, his conviction
became final when his time for seeking review in that court expired. See Gonzalez v. Thaler, 132
S. Ct. 641, 655 (2012) (holding that, because the Supreme Court can review only judgments of a
state’s highest court, where a petitioner fails to seek review in the state’s highest court, the judgment
becomes final when the petitioner’s time expires for seeking state-court review). Petitioner,
therefore, has one year from the time his conviction became final on May 4, 2012, in which to file
his habeas corpus petition.
In Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002), the Sixth Circuit held that
when the dismissal of a “mixed”1 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.2 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 more
than sixty days remaining in the limitations period, and, thus, he is not in danger of running afoul
of the statute of limitations so long as he diligently pursues his state court remedies. Therefore, a
stay of these proceedings is not warranted.
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).
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
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,  that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and  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 be allowed to proceed further.” Id. Therefore, the Court denies Petitioner a certificate of
A Judgment consistent with this Opinion will be entered.
Dated: November 30, 2012
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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