Bastien #388844 v. Palmer
Filing
10
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
MATHEW ALAN BASTIEN,
Petitioner,
Case No. 1:13-cv-793
v.
Honorable Robert J. Jonker
CARMEN PALMER,
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.
Discussion
I.
Factual allegations
Petitioner Mathew Alan Bastien is state prisoner incarcerated with the Michigan
Department of Corrections at the Michigan Reformatory. In 2011, following a jury trial in Hillsdale
County Circuit Court, Petitioner was convicted of: operating while intoxicated (OWI) causing death,
Mich. Comp. Laws § 257.625(4); OWI causing serious injury, Mich. Comp. Laws § 257.625(5);
OWI third offense, Mich. Comp. Laws § 257.625(9)(c); failure to stop at the scene of an accident
when at fault, resulting in death, Mich. Comp. Laws § 257.617(3); operating on a suspended license
causing death, Mich. Comp. Laws § 257.904(4); and operating on a suspended license causing
serious injury, Mich. Comp. Laws § 257.904(5). According to Petitioner’s MDOC record,1 the trial
court sentenced him as an habitual offender, Mich. Comp. Laws § 769.11, to the following terms of
imprisonment: 17 to 30 years for OWI causing death; 6 to 10 years for OWI causing serious injury;
17 to 30 years for failure to stop at the scene of the accident; 17 to 30 years for operating on a
suspended license causing death; and 6 to 10 years for operating on a suspended license causing
serious injury.2
Petitioner appealed the judgment of sentence and conviction to the Michigan Court
of Appeals. In an unpublished opinion dated July 31, 2012, the Michigan Court of Appeals vacated
the OWI third offense conviction and otherwise affirmed the judgment of conviction and sentence.
Petitioner then appealed to the Michigan Supreme Court, which denied leave to appeal on December
26, 2012. Petitioner filed the instant action on or about July 14, 2013, raising the following claims:
1
See http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=388844 (viewed Sept. 30, 2013).
2
Petitioner also received a sentence for the OWI third offense conviction, but that sentence was later vacated.
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I.
Insufficient evidence to support conviction for OWI causing serious
injury/operating on [a] suspended license causing serious injury.
II.
Improper departure from sentencing guidelines without providing substantial
and compelling reasons.
III.
Mental impairment suffered because jail officials gave psychotropic
medications, [and] failed to inform [Petitioner] of residual side effects.
IV.
Jail’s failure to inform about the side effects of the medication they gave is
newly discovered evidence requiring hearing.
(Pet., docket #1, Page ID##45, 47, 48, 51.)
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
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.
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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 asserts that he raised Grounds I and II on appeal, but that he did not exhaust
Grounds III and IV because the evidence supporting those grounds for relief was discovered after
he filed his appeal with the Michigan Court of Appeals. Consequently, it appears that Petitioner has
not exhausted Grounds III and IV by presenting them to all levels of the state’s appellate system.
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 Grounds III and IV. 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. In order to properly
exhaust Grounds III and IV, Petitioner must present them in a motion for relief from judgment filed
in the Hillsdale County Circuit Court. If his motion is denied by the circuit court, Petitioner must
appeal that decision to 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, 522 (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
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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, and the Michigan Supreme Court denied his application for leave to
appeal on December 26, 2012. 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 March 26, 2013. Accordingly, absent tolling,
Petitioner would have one year, until March 26, 2014, 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 781. 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
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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.3 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
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
3
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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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
be allowed to proceed further.” Id. Therefore, the Court will deny Petitioner a certificate of
appealability.
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In addition, the Court will deny Petitioner’s pending application to proceed in forma
pauperis (docket #2), because Petitioner has paid the $5.00 filing fee.
An Order and Judgment consistent with this Opinion will be entered.
Dated:
October 7, 2013
/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
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