McLean #275421 v. McKee
OPINION signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, kw)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
RONALD J. McLEAN,
Case No. 1:12-cv-1401
Honorable Paul L. Maloney
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 Ronald J. McLean presently is incarcerated at the Bellamy Creek
Correctional Facility. He pleaded guilty in the Muskegon County Circuit Court to three charges of
second-degree home invasion, MICH. COMP. LAWS § 750.110a(3).1 On March 22, 2010, he was
sentenced as a third felony offender, MICH. COMP. LAWS § 769.11, to a prison term of 3 to 30 years
on the first conviction, and as a fourth felony offender, MICH. COMP. LAWS § 769.12, to two terms
of 11 years and 10 months to 40 years on the remaining two convictions.
Petitioner, through counsel, filed an application for leave to appeal his conviction,
raising a single claim:
Defendant-Appellant must be re-sentenced where the trial court abused its
discretion when it scored 20 points rather than 0 points for PRV 2 resulting in
multiple punishments for the same offense where Defendant-Appellant’s prior lowseverity felonies were used to enhance his minimum and maximum sentence as a
habitual offender (MCL 77.21(3)(c) & MCL 769.12) and used a second time to
increase his sentencing guideline recommended sentence in contravention of the
state and federal constitutional prohibition against double jeopardy.
(Pet., docket #1, Page ID#2.) Petitioner attempted to file a supplemental pro per brief on appeal,
but was unsuccessful. In an order issued April 19, 2011, the Michigan Court of Appeals denied
leave to appeal for lack of merit in the grounds presented.
Petitioner, proceeding pro se, filed an application for leave to appeal to the Michigan
Supreme Court. He raised the issue rejected by the court of appeals, together with the following
The three offenses were charged in separate cases in the Muskegon County Circuit Court. See People v.
McLean, Case Nos. 09-58469-FH, 10-58838-FH, and 10-58945-FH.
Defendant was denied due process when the court used uncounseled
convictions to score his sentencing guidelines.
Defendant’s Prior Record Variables were improperly scored by the trial court.
Defendant’s sentence was improperly enhanced with the Habitual Offender
(Id., Page ID#3.) The supreme court denied leave to appeal on September 26, 2011.
On December 10, 2012, Petitioner filed a motion for relief from judgment in the
Muskegon County Circuit Court, raising five issues:
Mr. McLean was denied his Sixth Amendment right to the effective
assistance of counsel on appeal where counsel failed to raise the substantive
issues contained within this motion for relief from judgment, establishing the
cause required by MCR 6.508(D)(3)(a).
Mr. McLean was deprived of his Sixth Amendment right to counsel during
critical stages of the proceedings without knowingly and intelligently
waiving his right to be represented by counsel when the state engaged in plea
negotiations and repeated interrogation without counsel being present.
Mr. McLean was denied the effective assistance of counsel in the trial court
where counsel failed to perform as the advocate guaranteed by the Sixth
Mr. McLean is entitled to re-sentencing where the trial court abused its
discretion and sentenced him using inaccurate, invalid or otherwise unclear
information as to his prior criminal record.
The Trial Court erred when it considered misdemeanor convictions to
enhance Mr. McLean’s sentence pursuant to the Habitual Offender Act.
(Id., Page ID#4.) The motion was denied on January 18, 2013. Petitioner has not yet appealed the
decision to either the Michigan Court of Appeals or the Michigan Supreme Court.
Petitioner filed the instant habeas petition on or about December 20, 2012.2 In his
petition, Petitioner raises the following six grounds for relief:
Violations to [P]etitioner’s Fifth and Fourteenth Amendment Constitutional
Right[s] to be free from Double Jeopardy.
Petitioner was denied the effective assistance of appellate counsel on his
direct appeal, thereby establishing the cause for any alleged procedural
Petitioner was denied his Fifth and Sixth Amendment rights to counsel
during ‘critical stages’ of the proceedings and did not knowingly and
intelligently waive that right.
Violation of Petitioner’s Sixth Amendment Right to the effective assistance
of Trial Counsel, as guaranteed by the Sixth Amendment.
Violation of Petitioner’s Fourteenth Amendment right to due process and
equal protection where the Trial Court sentenced using constitutionally
infirm convictions which were obtained in violation of Gideon v Wainright,
372 U[.]S[.] 335 (1963) & Douglas v California, 372 U.S. 353 (1963), to
score his sentencing guidelines, thereby resulting in 28 month increase in his
minimum sentencing exposure.
Violation of Petitioner’s Fourteenth Amendment right to due process  to be
sentenced according to accurate information, where the Trial Court
considered Misdemeanors as Felony convictions when scoring his sentencing
guidelines and determining his Habitual Offender status[.]
(Id., Page ID##6-10.)
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 December
20, 2012, and it was received by the Court on December 27, 2012. Thus, it must have been handed to prison officials
for mailing at some time between December 20 and December 27, 2012. 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)).
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.
Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994). Petitioner acknowledges that only his first habeas ground was presented on
direct appeal to both the Michigan Court of Appeals and the Michigan Supreme Court. He also
acknowledges that his motion for relief from judgment, in which he ostensibly raises the remaining
five grounds, has not yet been appealed to either the Michigan Court of Appeals or the Michigan
Supreme Court. As a consequence, Grounds II through VI are not yet exhausted.
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 appeal the denial of his motion for relief from judgment. Therefore, the Court
concludes that he has at least one available state remedy. In order to properly exhaust his claim,
Petitioner must appeal the trial court’s denial of his motion to both the Michigan Court of Appeals
and the Michigan Supreme Court. See Duncan, 513 U.S. at 365-66.
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
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 September 26,
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 December 26, 2011. Accordingly, Petitioner had one year from that
date, or until December 26, 2012, in which to file his habeas petition. Petitioner filed the instant
petition on December 20, 2012, six days before expiration of the limitations period.
The Palmer Court 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 mandatory period of equitable tolling under Palmer). 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). In the
instant case, because Petitioner already has filed his motion for relief from judgment, he does not
require 30 days to file a motion for post-conviction relief. However, he does 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
no indication that the petitioner engaged in “intentionally dilatory litigation tactics.” Id. at 278.
Moreover, under Rhines, if the district court determines that a stay is inappropriate, it must allow
the petitioner the opportunity to delete the unexhausted claims from his petition, especially in
circumstances in which dismissal of the entire petition without prejudice would “unreasonably
impair the petitioner’s right to obtain federal relief.” Id.
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 the 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 review only his exhausted claims. In the alternative, Petitioner may file an amended petition
setting forth only his exhausted claims.
An Order consistent with this Opinion will be entered.
February 12, 2013
/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge
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