Turner #848490 v. Palmer
Filing
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OPINION; Order to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALON DELMAR TURNER,
Petitioner,
Case No. 1:15-cv-319
v.
Honorable Janet T. Neff
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 Alon Delmar Turner presently is incarcerated at the Michigan Reformatory.
Petitioner pleaded guilty in the Wayne County Circuit Court to second-degree murder, MICH. COMP.
LAWS § 750.317, and possession of a firearm during the commission of a felony, MICH. COMP.
LAWS § 227b. On August 15, 2012, Petitioner was sentenced to respective prison terms of 22½ to
60 years and 2 years.
Petitioner filed a delayed application for leave to appeal his conviction to the
Michigan Court of Appeals. In the brief filed by counsel, Petitioner raised one ground:
I.
WAS [PETITIONER] DENIED HIS FIFTH AND FOURTEENTH
AMENDMENT CONSTITUTIONAL RIGHTS OF DUE PROCESS WHEN
THE TRIAL COURT DENIED HIS MOTION TO WITHDRAW HIS
GUILTY PLEA BECAUSE THE PLEA WAS NOT VOLUNTARILY,
KNOWINGLY AND INTELLIGENTLY MADE?
(Def.-Appellant’s Br. on Appeal, docket #1-1, Page ID#22.) Petitioner drafted a supplemental brief
on appeal, raising two issues:
I.
[PETITIONER] DID NOT VOLUNTARILY AND KNOWINGLY PLEAD
GUILTY, IN VIOLATION OF THE STATE AND FEDERAL DUE
PROCESS CLAUSES, WHERE HE WAS MISADVISED BY HIS
ATTORNEY THAT A WITNESS WAS NOT GOING TO TESTIFY ON
HIS BEHALF.
II.
[PETITIONER] WAS DENIED HIS FEDERAL AND STATE
CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF
COUNSEL BECAUSE COUNSEL FAILED TO PROPERLY INFORM
HIM THAT A WITNESS WAS GOING TO TESTIFY ON HIS BEHALF.
(Def.-Appellant’s Pro Per Br. on Appeal, docket #1-2, Page ID#38.)
Petitioner dated his
supplemental brief on July 18, 2013 and mailed it to his attorney. (Id. at 50.) However, Petitioner’s
appellate attorney did not mail it to the court of appeals until July 30, 2013, and it was received by
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the court on August 1, 2013. (Mot. to File Supp. Br., docket #1-2, Page ID#35.) The court of
appeals returned the supplemental brief to the attorney on August 5, 2013, because it was untimely.
(See 8/5/13 Letter from Mich. Ct. App. (MCOA), docket #1-2, Page ID#33.) On August 5, 2013,
the court of appeals denied leave to appeal for lack of merit in the grounds presented. (8/5/13
MCOA Ord., docket #1-3, Page ID#57.)
Petitioner sought leave to appeal to the Michigan Supreme Court, raising the ground
presented by counsel in the Michigan Court of Appeals, together with the following ground:
I.
[PETITIONERWAS] DENIED HIS CONSTITUTIONAL RIGHT TO THE
ASSISTANCE OF COUNSEL WHEN APPELLATE COUNSEL FAILED
TO FILE DEFENDANT’S STANDARD-4 BRIEF IN A TIMELY
MANNER AND THE COURT OF APPEALS DID NOT CONSIDER
[PETITIONER]’S STANDARD-4 BRIEF IN THEIR DECISION TO DENY
[PETITIONER]’S DELAYED APPLICATION FOR LEAVE TO APPEAL.
(Def.-Appellant’s Application to Mich. Sup. Ct., docket #1-4, Page ID#63.) The supreme court
denied leave to appeal on December 23, 2013. (12/23/13 Mich. Sup. Ct. (MSC) Ord., docket #1-5,
Page ID#76.) Petitioner did not petition for writ of certiorari in the United States Supreme Court.
On or about March 19, 2013,1 Petitioner filed his habeas application in this Court.
Petitioner raises the ground presented by counsel on direct appeal and the new ground presented to
the Michigan Supreme Court.
1
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 March 19,
2015, and it was received by the Court on March 23, 2015. Thus, it must have been handed to prison officials for mailing
at some time between March 19 and 23, 2015. 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)).
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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’s allegations demonstrate that he has exhausted his first habeas
ground, as he presented it at all levels of the Michigan courts. However, Petitioner’s second ground
for habeas review was raised for the first time in his application for leave to appeal to the Michigan
Supreme Court. Presentation of an issue for the first time on discretionary review to the state
supreme court does not fulfill the requirement of “fair presentation.” Castille v. Peoples, 489 U.S.
346, 351 (1989). Applying Castille, the Sixth Circuit repeatedly has recognized that a habeas
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petitioner does not comply with the exhaustion requirement when he fails to raise a claim in the state
court of appeals, but raises it for the first time on discretionary appeal to the state’s highest court.
See Skinner v. McLemore, 425 F. App’x 491, 494 (6th Cir. 2011); Thompson v. Bell, 580 F.3d 423,
438 (6th Cir. 2009); Warlick v. Romanowski, 367 F. App’x 634, 643 (6th Cir. 2010); Granger v.
Hurt, 215 F. App’x 485, 491 (6th Cir. 2007). Unless the state supreme court actually grants leave
to appeal and reviews the issue, it remains unexhausted in the state courts. Petitioner’s application
for leave to appeal was denied, and, thus, the issue was not reviewed.
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 for convictions 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 Wayne 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
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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
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 23,
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 Monday, March 24, 2014. Accordingly, Petitioner had one year, until
March 24, 2015, in which to file his habeas petition. Petitioner filed the instant petition on March
19, 2015, five 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
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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’s
statute of limitations has now expired. 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
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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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 claims.
An Order consistent with this Opinion will be entered.
Dated:
April 6, 2015
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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