Jones #168654 v. Jackson

Filing 9

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

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

WILLIAM ANTHONY JONES,
Petitioner,

Case No. 1:15-cv-1338

v.

Honorable Robert J. Jonker

SHANE JACKSON,
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). 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 he intends to raise in the petition. Because Petitioner has fewer than 60 days remaining in
the limitations period for filing a habeas petition, the Court will grant Petitioner’s motion for a stay
of the proceedings pending exhaustion of his state-court remedies.

Factual Allegations & Procedural History
Petitioner is incarcerated in the E.C. Brooks Correctional Facility. Following separate
jury trials in the Muskegon County Circuit Court, Petitioner was convicted in the first case (Docket
No. 306331) of failing to comply with the Sex Offenders Registration Act, second offense, and in
the second case (Docket No. 306334) of first-degree home invasion and three counts of first-degree
criminal sexual conduct during the commission of a felony (CSC I). On July 18, 2011, the trial court
sentenced Petitioner as a fourth-offense habitual offender to serve concurrent prison terms of 42
months to 15 years for failing to comply with the Sex Offenders Registration Act, 51 to 80 years for
each of the CSC I convictions, and 18 to 30 years for the home invasion conviction.
The two criminal cases were consolidated for purposes of appeal. The Michigan
Court of Appeals issued an opinion affirming Petitioner’s convictions on February 11, 2014. The
Michigan Supreme Court subsequently denied Petitioner’s application for leave to appeal on
September 29, 2014.
Petitioner now raises the following grounds for habeas corpus relief, which were
raised before and rejected by the Michigan appellate courts:
I.

THE STATE COURTS ERRED IN HOLDING THAT ADMISSION OF
IRRELEVANT AND HIGHLY PREJUDICIAL PRIOR BAD ACTS
EVIDENCE OF A 29-YEAR OLD INCIDENT ALLEGED TO HAVE
OCCURRED WHEN MR. JONES WAS 17 YEARS OLD, AS WELL AS
A 7 YEAR-OLD INCIDENT THAT WAS NEVER CONNECTED TO
MR. JONES OTHER THAN BALD SPECULATION DID NOT REQUIRE
A NEW TRIAL.

II.

THE STATE COURT ERRED IN HOLDING THAT DEFENSE COUNSEL
WAS NOT CONSTITUTIONALLY INEFFECTIVE IN FAILING TO
FORESEE SUBSEQUENT RULINGS FROM THE TRIAL COURT THAT
AFFECTED A STRATEGIC DECISION THAT MR. JONES WOULD NOT
TESTIFY WHEN COUNSEL TOLD THE JURY IN OPENING
STATEMENTS THAT MR. JONES WOULD TESTIFY ON THE KEY
DEFENSE ISSUE OF CONSENT.
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III.

THE STATE COURTS ERRED IN HOLDING THAT NUMEROUS
INSTANCES OF PROSECUTORIAL MISCONDUCT IN CLOSING
ARGUMENT DID NOT DEPRIVES MR. JONES OF HIS DUE PROCESS
RIGHT TO A FAIR TRIAL AND REQUIRE REVERSAL.

(Pet., Attachment C, ECF No. 1-3, PageID.125.) Petitioner also seeks a stay the proceedings (ECF
No. 3) while he raises several new claims in the Michigan state courts.
Discussion
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 properly exhausted the three grounds for relief listed above in the

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Michigan appellate courts. Petitioner, however, has not yet exhausted several new claims set forth
in his motion to stay the proceedings. Petitioner may seek review of those claims in the state court
by filing 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. In order to properly exhaust his claims, Petitioner must file a
motion for relief from judgment in the Muskegon 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
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).
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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 September 29,
2014. 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 December 28, 2014. Accordingly, Petitioner had one year, until
December 28, 2015, in which to file his habeas petition. Petitioner filed the instant petition on
December 22, 2015,1 six 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 Because the statute of limitations
has now expired, Petitioner would not have the necessary 30 days to file a motion for post-conviction

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 22, 2015, and it was received by the Court on December 28, 2015. Thus, it must have been handed to prison
officials for mailing at some time between December 22 and 28. 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)).
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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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. The Court finds
that the allegations set forth in Petitioner’s motion for a stay are sufficient to satisfy the Rhines
requirements. Consequently, the Court will grant Petitioner’s motion to stay these proceedings
pending exhaustion of his state court remedies.
An Order consistent with this Opinion will be entered.

Dated:

January 25, 2016

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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