Shellenbarger #377706 v. Berghuis
Filing
9
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
DAVID L. SHELLENBARGER, JR.,
Petitioner,
v.
Case No. 1:14-cv-817
Honorable Gordon J. Quist
MARY K. BERGHUIS,
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 and because Petitioner has filed
a motion to stay, the Court will not dismiss the action at this time. Petitioner’s motion to stay
sufficiently satisfies the requirements set forth in Rhines v. Weber, 544 U.S. 269, 277 (2005), thus
the Court will stay this action pending Petitioner’s complying with the further directions of this
Court set forth in the attached order.
Discussion
I.
Factual allegations
Petitioner David L. Shellenbarger, Jr. is a state prisoner incarcerated at the Earnest
C. Brooks Correctional Facility. On November 10, 2011, he was convicted in the Ionia County
Circuit Court of armed robbery, MICH . COMP . LAWS § 750.529.
He was sentenced as a
fourth-offense felony offender, MICH . COMP . LAWS § 769.12, to a prison term of 22 to 50 years.
Petitioner appealed the judgment of conviction and sentence to the Michigan Court of Appeals and
the Michigan Supreme Court, asserting that: (1) Petitioner was denied due process of law where
jurors observed him in shackles and prison uniform; (2) Petitioner was denied a fair trial where
defense counsel failed to object to hearsay; and (3) Petitioner is entitled to resentencing due to
inaccurate OV scoring. The Michigan Court of Appeals affirmed the judgment of conviction on
January 22, 2013, but remanded for resentencing.1 The Michigan Supreme Court denied leave to
appeal on June 25, 2013.
In his application for habeas corpus relief (docket #1), Petitioner asserts the same
three grounds for relief that he asserted on appeal from his conviction. In a motion filed
contemporaneously with the petition (docket #3), Petitioner requests a stay in this action so that he
may exhaust additional claims that were not raised on appeal before the Michigan appellate courts.
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,
1
It is unclear if the 22 to 50 year term of imprisonment was Petitioner’s original sentence, or is the sentence he
received after the case was remanded to the trial court for resentencing.
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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. 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).
In this case, it is clear that Petitioner intends to assert one or more claims that were
not previously raised in the Michigan appellate courts, and that he intends to bring those claims in
a motion for relief from judgment under subchapter 6.500 of the Michigan Court Rules. Under
Michigan law, one such motion may be filed after August 1, 1995. MICH . CT . R. 6.502(G)(1). It
appears that 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 unexhausted claims,
Petitioner must file a motion for relief from judgment in the Ionia 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.
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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
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. The Michigan Supreme Court denied his application on June 25,
2013. 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 September 23, 2013. Accordingly, absent tolling, Petitioner would
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have one year from that date, until September 23, 2014, in which to file his habeas petition.
Petitioner timely filed the instant petition on August 1, 2014, 53 days before expiration of the
limitations period.
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).2 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, 544 U.S. at 277. 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,
2
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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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.
As previously noted, concurrently with this petition, Petitioner filed a motion to stay
proceedings. In his motion, Petitioner avers that he has discovered numerous meritorious claims
and that he has not intentionally delayed bringing his claims in the state courts. Petitioner requests
a stay of this action to exhaust his unexhausted claims in state proceedings.
The Court concludes that Petitioner has sufficiently satisfied the requirements set
forth in Rhines. Accordingly, Petitioner’s motion to stay the petition (docket #3) will be granted.
An Order consistent with this Opinion will be entered.
Dated: October 7, 2014
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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