Huguely #162144 v. Palmer
Filing
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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
SOUTHERN DIVISION
DENNIS HUGUELY,
Petitioner,
Case No. 1:14-cv-240
v.
Honorable Gordon J. Quist
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 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.
Discussion
I.
Factual allegations
Petitioner Dennis Huguely is a state prisoner incarcerated at the Michigan
Reformatory. In 2011, he was convicted of home invasion, Mich. Comp. Laws § 750.110a(3), and
was sentenced as a habitual offender to life in prison. He appealed his conviction, claiming (1) that
he was denied effective assistance of counsel because counsel prevented him from presenting his
theory of a defense to the jury and (2) that his sentence was unconstitutional because it was cruel
and unusual and disproportionate to his offense. On July 7, 2012, the Michigan Court of Appeals
remanded for resentencing, noting that the trial court did not give sufficient reasons for departing
from the sentencing guidelines, but otherwise affirmed the trial court’s judgment. Petitioner then
sought further review by the Michigan Supreme Court, raising the same two claims, as well as an
additional claim that he was denied equal protection and the effective assistance of appellate counsel
because neither his appellate counsel nor the court provided him with copies of trial and sentencing
transcripts to allow him to formulate issues for appeal. The circuit court subsequently issued a new
sentence of 11 to 30 years’ imprisonment on October 16, 2012, and the Michigan Supreme Court
denied Petitioner’s application for leave to appeal on November 20, 2012. Petitioner was appointed
counsel to appeal the new sentence, but his appeal was dismissed as untimely on April 22, 2013.
In Ground I of his habeas application, Petitioner asserts same claim regarding the
ineffective assistance of his trial counsel that he raised on appeal. In Ground II, he asserts that his
new sentence is unconstitutional because it is disproportionate to his offense and because he is being
charged for the cost of his incarceration. In Ground III, he asserts that he was denied equal
protection and the effective assistance of appellate counsel because neither his appellate counsel nor
the court provided him with copies of trial and sentencing transcripts to allow him to formulate
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issues for appeal. Grounds II and III have not been presented on appeal to both the Michigan Court
of Appeals and the Michigan Supreme Court.
II.
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). As
indicated, Petitioner has not presented Grounds II and III of the petition 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 the unexhausted issues he has presented in this
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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. Petitioner claims that he cannot exhaust his
claims because he cannot access the trial and sentencing transcripts from his circuit court
proceedings. However, his trial and sentencing transcripts are not necessary for him to argue that
his new sentence is disproportionate to his offense (ostensibly raising arguments similar to those that
he raised when challenging his original sentence), to challenge the fact that he is being charged for
his incarceration, or to raise the fact that neither the state court nor his appellate counsel would
provide him with copies of the requested transcripts. Therefore, the Court concludes that he has at
least one available state court remedy. In order to properly exhaust his claims, Petitioner must file
a motion for relief from judgment in the Wayne County Circuit Court. If his motion is denied by
that 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 one claim that is 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
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
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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
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 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’s new sentence issued on October 16, 2012. Thereafter,
Petitioner filed an untimely appeal of right, under Mich. Ct. R. 7.204(A)(2), but apparently he did
not file a late application for leave to appeal in accordance with Mich. Ct. R. 7.205(G). Where a
petitioner has failed to pursue 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).
However, such a petitioner is not entitled to also count the additional period in which he could have
sought review in the Michigan Supreme Court, or the 90-day period during which he could have
filed a petition for certiorari to the United States Supreme Court. 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 for seeking that review expires). Under Michigan law, a
criminal defendant has six months in which to file a delayed application for leave to appeal to the
Michigan Court of Appeals. See MICH . CT . R. 7.205(G)(3). Consequently, Petitioner’s judgment
of conviction and sentence became final on April 16, 2013. Accordingly, he had one year, until
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April 16, 2014, in which to file his habeas petition. Petitioner filed before expiration of the
limitations period, but that period is now expired.
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 721. See also Griffin, 308 F.3d at 653 (holding that sixty days
amounts to mandatory period of equitable tolling under Palmer). In the instant case, Petitioner
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. 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.
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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
review only his exhausted claims. In the alternative, Petitioner may file an amended petition setting
forth only his exhausted claim regarding the ineffective assistance of his trial counsel.
An Order consistent with this Opinion will be entered.
Dated: April 30, 2014
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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