Haney #653382 v. Jackson

Filing 7

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

LONNIE HANEY,
Petitioner,

Case No. 1:15-cv-1291

v.

Honorable Robert Holmes Bell

SHANE JACKSON,
Respondent.
____________________________________/
OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254.
The matter is before the Court on Petitioner’s motion to stay the proceedings (ECF No. 3) while he
completes appellate review of his second motion for relief from judgment. The Court will deny the
motion to stay.
Discussion
I.

Factual allegations

Petitioner Lonnie Haney presently is incarcerated at the Earnest C. Brooks
Correctional Facility. Following a jury trial in the Kalamazoo County Circuit Court, Petitioner was
convicted of three counts of first-degree criminal sexual conduct (CSC I) involving a person under
13 years of age, MICH. COMP. LAWS § 750.520b. On May 9, 2011, Petitioner was sentenced, as a
third-offense felony offender, MICH. COMP. LAWS § 769.11, to three concurrent terms of 25 to 40
years.
Petitioner appealed his convictions to the Michigan Court of Appeals. In the brief
filed by counsel, Petitioner raised two claims: (1) the trial court abused its discretion by overruling

Petitioner’s repeated objections to the prosecutor’s leading questions; and (2) Petitioner was denied
a fair trial when a police officer testified that she knew his age because she had run a criminal history
on him, thereby suggesting to the jury that Petitioner had a prior conviction. Petitioner filed a pro
per supplemental brief, in which he raised a third claim: he was denied his right to the effective
assistance of counsel when his attorney failed, in explaining a plea offer on the first day of trial, to
advise Petitioner that he faced a 25-year minimum sentence if he was found guilty at trial. In an
unpublished opinion issued on April 24, 2012, the court of appeals rejected the first two arguments,
but remanded the case to the trial court for an evidentiary hearing on the ineffective-assistance-ofcounsel claim under the framework set forth in Lafler v. Cooper, 132 S. Ct. 1376 (2012). The trial
court held an evidentiary hearing on July 25, 2012, after which it found that counsel had not been
effective. On October 23, 2012, the court of appeals affirmed the trial court’s finding. Petitioner
sought leave to appeal to the Michigan Supreme Court, raising the same three grounds. The supreme
court denied leave to appeal on April 1, 2013.
Petitioner filed a motion for relief from judgment under MICH. CT. R. 6.502 on July
19, 2013. In his motion, Petitioner raised the following issues: (1) ineffective assistance of counsel
in failing to investigate, failing to present a viable defense, failing to move to dismiss the void
complaint and information, and failing to challenge the subject-matter jurisdiction of the district and
circuit courts; (2) denial of Petitioner’s right to a jury drawn from a fair cross-section of the
community and ineffective assistance of counsel in failing to challenge the venire; (3) prosecutorial
misconduct in suppressing exculpatory evidence at trial; (4) denial of a fair trial when the
prosecution failed to inform him of his right to a polygraph examination; (5) absence of trial-court
jurisdiction over the charges; and (6) denial of the effective assistance of appellate counsel. In an

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opinion and order issued on December 16, 2013, the trial court rejected all grounds for relief because
they were meritless. Petitioner sought leave to appeal to both the Michigan Court of Appeals and
the Michigan Supreme Court, raising the same six issues. Both courts denied leave to appeal, on
May 19, 2014 and March 31, 2015, respectively.
In September 2015, Petitioner attempted to file a “Post-Conviction Motion to Remand
for Evidentiary Proceeding.” The trial court rejected the motion as an improper second motion for
relief from judgment, which is barred by MICH. CT. R. 6.502(G)(1).

The court denied

reconsideration on November 10, 2015. Petitioner has now filed an application for leave to appeal
from the order denying reconsideration. See People v. Haney, No. 330813, http://courts.mi.gov/
opinions_orders/case_search/pages/default.aspx?SearchType=1&CaseNumber=330813&CourtT
ype_CaseNumber=2.
In his habeas application, filed on or about December 2, 2015,1 Petitioner raises the
nine grounds presented on direct appeal and in his first motion for relief from judgment. Petitioner
also adds four new grounds for relief, taken from his state-court “Post-Conviction Motion to Remand
for Evidentiary Proceeding”: (10) Petitioner’s Fifth and Sixth Amendment rights were violated
when the police failed to honor Miranda v. Arizona, 384 U.S. 436 (1966); (11) Petitioner did not
knowingly, intelligently or voluntarily waive his Miranda rights; (12) trial counsel was ineffective
in failing to move to suppress Petitioner’s custodial statement; and (13) the prosecutor deprived
Petitioner of due process by knowingly presenting perjurious testimony. Petitioner has filed a

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 December
2, 2015, and it was received by the Court on December 14, 2015. Thus, it must have been handed to prison officials for
mailing at some time between December 2 and 14, 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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motion in this Court seeking to stay the proceedings (ECF No. 3) while he completes appellate
review of the trial court’s rejection of his state-court motion. In the brief supporting his motion to
stay, Plaintiff asserts only that, because his new issues are meritorious, he should be entitled to raise
four wholly new issues not presented either on direct appeal or in his first motion for relief from
judgment.
II.

Analysis

Petitioner has filed a motion in this Court seeking to stay the proceedings (ECF No.
3) while he completes appellate review of the trial court’s rejection of his state-court motion. In the
brief supporting his motion to stay, Petitioner asserts that he is required to exhaust his state-court
remedies by 28 U.S.C. § 2244(b)(2) and that his new issues are meritorious. He therefore contends
that the procedural correctness of his state-court post-conviction motions is irrelevant to his
entitlement to a stay.
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
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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 has exhausted his first nine claims. He acknowledges, however, that he
has failed to complete one full round of state court review on his remaining four grounds. He seeks
a stay of these proceedings in order to exhaust his remaining four claims, as required by
§ 2254(b)(1).
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). Exhaustion
is only a problem, however, if there is a state court remedy available for petitioner to pursue, thus
providing the state courts with an opportunity to cure any constitutional infirmities in the state court
conviction. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). If no further state remedy is available
to the petitioner, exhaustion does not present a problem, but the claim is procedurally defaulted and
the federal court must determine whether cause and prejudice exists to excuse the failure to present
the claim in state court. Id.
Under Michigan law effective August 1, 1995, a defendant may file only one motion
for relief from judgment under Michigan Court Rule 6.500 et. seq., unless there has either been a
retroactive change in the law that occurred after the first petition or the second motion presents new
evidence not discoverable at the time of the first motion. See MICH. CT. R. 6.502(G)(1)-(2).
Petitioner already has filed his one allotted motion, and the claims he seeks to pursue do not fall
within the narrow exceptions to the general rule against successive motions. Petitioner therefore has
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no available remedy, as the trial court effectively held in rejecting Plaintiff’s second motion for relief
from judgment and in denying his motion for reconsideration.2 His claims therefore are considered
exhausted, though procedurally defaulted. See Rust, 17 F.3d at 160.
Petitioner nevertheless wishes to continue his quixotic efforts to obtain state-court
review, but he is concerned about the running of his statute of limitations. Petitioner’s habeas
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 April 1, 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 July 1, 2013. Accordingly, absent tolling, Petitioner would have had one year, or until
July 1, 2014, in which to file his habeas petition.
A properly filed application for state post-conviction review or other state collateral
review tolls the statute of limitations during the period the application is pending. See 28 U.S.C.
§ 2244(d)(2). The statute of limitations is tolled from the filing of an application for state
post-conviction or other collateral relief until a decision is issued by the state supreme court.

2

Moreover, “[a] defendant may not appeal the denial or rejection of a successive motion.” MICH. CT. R.
6.502(G)(1). Plaintiff’s attempts to appeal the rejection of his motion, therefore, are themselves improperly filed.

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Lawrence v. Florida, 549 U.S. 327 (2007). The statute is not tolled during the time that a Petitioner
petitions for writ of certiorari in the United Stated Supreme Court. Id. at 332.
Petitioner filed his first motion for relief from judgment on July 19, 2013, just 18 days
after his limitations period began to run. As a result, his statute of limitations was tolled with 347
days remaining in the limitations period, and it remained tolled until the Michigan Supreme Court
denied his application for leave to appeal on March 31, 2015. Absent further tolling, therefore,
Petitioner’s statute of limitations will expire on Monday, March 14, 2016.
Petitioner suggests but does not affirmative argue that his “Post-Conviction Motion
to Remand for Evidentiary Proceeding,” which was construed by the state courts as a successive
motion for relief from judgment, should toll his limitations period yet again. In order to toll the
statute of limitations, any application for post-conviction relief must be “properly filed.” 28 U.S.C.
§ 2244(d)(2). An application is “‘properly filed’ when its delivery and acceptance are in compliance
with the applicable laws and rules governing filings.” Artuz v. Bennett, 531 U.S. 4, 8 (2000)
(emphasis in original). Petitioner’s second motion for relief from judgment could not serve to toll
the limitations period because it was not a “properly filed” application for State post-conviction
review within the meaning of 28 U.S.C. § 2244(d)(2). As discussed above, Petitioner was prohibited
from filing a second motion for relief from judgment pursuant to MICH. CT. R. 6.502(G)(1). Because
Petitioner’s second motion was filed in violation of state procedural rules, it may not serve to toll
the limitations period. Williams v. Birkett,670 F.3d 729, 733 (6th Cir. 2012) (holding that second
motion for relief from judgment that does not meet the limited exceptions of MICH. CT. R.
6.502(G)(1) is not properly filed and does not toll the statute of limitations) (citing Pace v.
DiGuglielmo, 544 U.S. 408, 417 (2005), and Artuz, 431 U.S. at 10-11); see also Rodriguez v.
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McQuidgen, No. 08-cv-13263, 2009 WL 2742004, at *3 (E.D. Mich. Aug. 25, 2009) (“Because
Petitioner’s second unauthorized post-conviction motion was not ‘properly filed’ under Michigan
law, it was not ‘properly filed’ for purposes of § 2244(d)(2).”).
Implicitly acknowledging that his second motion for relief from judgment that was
filed in September 2015 will not toll the statute of limitations because it is not properly filed,
Petitioner argues that the Court should grant a stay of these proceedings, in order to permit him to
complete appellate review. In Rhines v. Weber, 544 U.S. 269 (2005), the Supreme Court approved
the stay-and-abeyance procedure, but it limited the circumstances under which a stay would be
appropriate. The Court held that such a stay should only be granted if (1) there is good cause for
Petitioner’s failure to exhaust the unexhausted claims, (2) the unexhausted claims are not plainly
meritless, and (3) there is no indication that Petitioner has engaged in abusive or dilatory litigation
tactics. Id. at 277-78.
Petitioner has made no attempt to meet the Rhines standard. While Petitioner has
actively litigated his many claims about the impropriety of his conviction and sentence, arguably
demonstrating his diligence, he fails to demonstrate cause for his failure to raise the additional claims
on direct appeal or in his first motion for relief from judgment. He therefore has not demonstrated
good cause for his failure to exhaust. Rhines, 544 U.S. at 277-78. As a consequence, Petitioner fails
to demonstrate entitlement to a stay of these proceedings.
Conclusion
For the foregoing reasons, the Court will deny Plaintiff’s motion to stay the
proceedings during his remaining attempts to seek state-court review of his newly added claims.
An order consistent with this Opinion will be entered.

Dated: January 21, 2016

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE
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