Polston #794019 v. Stoddard

Filing 4

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
SOUTHERN DIVISION
WILLIAM BRYAN POLSTON,
Petitioner,

Case No. 1:14-cv-289

v.

Honorable Paul L. Maloney

CATHLEEN STODDARD,
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 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 William Bryan Polston presently is incarcerated with the Michigan
Department of Corrections at the Carson City Correctional Facility. After a jury trial in the Eaton
County Circuit Court, Petitioner was convicted of three counts of third-degree criminal sexual
conduct, MICH. COMP. LAWS § 750.520d(1)(e), and three counts of first-degree criminal sexual
conduct, MICH. COMP. LAWS § 750.520b(1)(b). On February 24, 2011, Petitioner was sentenced to
four years and nine months to fifteen years’ imprisonment on each of the third-degree criminal
sexual conduct convictions and fifteen to thirty years on each of the first-degree criminal sexual
conduct convictions.
Petitioner, represented by counsel, filed a direct appeal in the Michigan Court of
Appeals raising the following grounds for relief: (1) newly discovered evidence; (2) inadequate time
to prepare defense; (3) other acts evidence improperly admitted; and (4) improper dismissal of a
juror. On July 26, 2012, in an unpublished opinion, the Michigan Court of Appeals affirmed
Petitioner conviction and sentence. Petitioner filed an application for leave to appeal in the
Michigan Supreme Court, which was denied on December 26, 2012.1
Petitioner has not filed a motion for relief from judgment pursuant to MICH. CT. R.
6.500.
In the instant petition, Petitioner raises the same four grounds for relief he raised on
appeal as well as the following new grounds: (5) ineffective assistance of trial counsel related to

1

Although Petitioner does not identify the claims he raised in his application for leave to appeal in the Michigan
Supreme Court, presumably he raised the same claims he raised before the Michigan Court of Appeals. To the extent
Petitioner might have raised new or different claims in the Michigan Supreme Court those claims would be unexhausted.

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counsel’s failure to explain that Petitioner resigned from his job for health reasons; (6) ineffective
assistance of counsel for failing to object to the prosecutor’s closing argument; and (7) ineffective
assistance of counsel for failing to offer evidence regarding the destruction of phone records.
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). Petitioner raised his first four grounds for relief on direct appeal in the
Michigan Court of Appeals and Michigan Supreme Court.2 Consequently, theses grounds for relief

2

See supra. p.2, n.1.

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were properly exhausted. Petitioner, however, failed to exhaust his fifth through seventh grounds
for 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 unexhausted 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. In order to properly exhaust his claim, Petitioner must file a motion
for relief from judgment in the Eaton 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
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 appealed his conviction to the Michigan Court of Appeals and
Michigan Supreme Court. The Michigan Supreme Court denied his application 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 Tuesday, March 26, 2013. Accordingly, Petitioner had one year, until
March 26, 2014, in which to file his habeas petition. Petitioner filed the instant petition on March
17, 2014, nine days before expiration of the limitations period.3
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

3

According to the petition, March 17, 2014, is the date that Petitioner placed his application in the prison
mailing system. (Pet., docket #1, Page ID#15.) 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).

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amounts to mandatory period of equitable tolling under Palmer).4 In the instant case, Petitioner has
less than sixty days remaining before the statute of limitations expires. Petitioner therefore 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.
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
4
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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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.

Dated:

April 14, 2014

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

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