Hullihen #866331 v. Klee

Filing 3

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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

BLAKE DANIEL HULLIHEN,
Petitioner,

Case No. 1:16-cv-1051

v.

Honorable Paul L. Maloney

PAUL KLEE,
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 will dismiss the petition without prejudice for failure to exhaust
available state-court remedies.

Discussion
I.

Factual allegations

Petitioner is incarcerated at the Gus Harrison Correctional Facility in Adrian,
Michigan. He is serving two concurrent sentences of 37½ year to 75 years imprisonment for seconddegree murder convictions, MICH. COMP. LAWS § 750.317, consecutive to two concurrent two-years
sentences for possession of a firearm during the commission of a felony, MICH. COMP. LAWS §
750.227b. Petitioner was convicted by an Osceola County Circuit Court jury of murdering Gabrielle
Woodworth, the mother of Petitioner’s daughter, and Donald Feneis, Gabrielle’s boyfriend. The
Michigan Court of Appeals described the underlying facts as follows:
Both victims were shot when they met with defendant at a Chuck’s Corners
gas station that had been the exchange point for defendant and Woodworth when
transferring custody of their daughter. Woodworth was expecting to pick up her
daughter at the time, but defendant had not bought her with him to that location.
Defendant admitted to shooting both victims, but argued that he acted in
self-defense. Defendant testified that Woodworth began yelling at him when he told
her that he had not brought his daughter. Defendant further testified that Feneis
exited his truck and “then him basically screaming at me, he’s going to kill me.”
Defendant testified it was cold and dark and there were no lights on that portion of
the gas station. He said Woodworth and Feneis “were coming towards me a little bit;
I was backing up.” Defendant testified that Feneis pulled something “shiny” and
“black” out of his pocket . . . . When asked about the object from the pocket,
defendant testified he “didn’t know what it was for sure.”
Defendant did not remember who he shot or how many bullets he fired. Nor
did he recall Woodworth falling to the ground and Feneis running away from him.
He testified that when Feneis turned toward him, he “started shooting again” because
he “thought [Feneis] still had a gun.” When Feneis fell to the ground, defendant
testified he backed away to his truck. He then left and headed back to his parents’
home, where he told his father he had shot two people who had attacked him.
Defendant’s father accompanied him when he turned himself in to police.
Evidence was presented at trial that Woodworth was shot eight times,
including a total of five gunshot wounds to her face and neck. Woodworth was also
shot three times in the torso. Feneis was shot eleven times, including three times in
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the head and six times in the torso. Defendant’s gun’s magazine had an eight-round
capacity and could carry one round in the chamber.
An eyewitness, Penny Savage, testified that she heard the gunshots and saw
defendant shoot a man as he ran toward the store. She then testified that defendant
inserted a new magazine in his gun and “very methodically walked up and emptied
it” into the man’s body lying on the ground. The eyewitness also testified that she
did not hear any argument or altercation before the shooting started, and that
defendant ran over the woman’s body with his truck as he left the scene. Another
eyewitness, Carl Asher, testified that he heard the gunshots, did not hear any
argument or altercation beforehand, and saw the shooter drive off.
(Mich. Ct. App. Op., ECF No. 1-1, PageID.104-05.) At sentencing, the trial court departed upward
from the guidelines. The court concluded that the guidelines limit of 100 points for offense variable
failed to take into account the severity of the crime; accordingly, the court simply moved one cell
beyond that which the guidelines otherwise provided and then sentenced Petitioner to the maximum
minimum-sentence provided in that guidelines cell.
Petitioner filed a claim of appeal in the Michigan Court of Appeals. His initial brief,
filed by counsel, raised essentially the following issues:
I.

In a murder case the manslaughter instruction is required where (1) there is
a history of threats to kill defendant; (2) decedent pulled a small dark object
from his pocket; (3) the prosecutor’s summary of evidence to the jury argued
from the evidence that defendant was “pissed”; (4) defendant’s first statement
after the shooting was that “I just lost it and started shooting and shooting; (5)
there were 17 shots killing two people; and (6) defendant’s testimony was
that “I snapped or something, I swear it was a gun.”

II.

In a self defense case based, inter alia, on uncontested evidence that one of
the deceased pulled a dark object from his pocket, false argument by the
prosecutor that there was no self defense because the defendant first shot the
other person, requires a new trial.

III.

At sentencing no specific reason and facts were articulated to justify the
upward departure.

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IV.

Defendant’s Sixth and Fourteenth Amendment rights were violated by
judicial fact finding which increased the floor of the permissible sentence in
violation of Alleyne v. United States, 133 S. Ct. 2151 (2013).

V.

Defense counsel’s failure to make proper objections and record was
constitutionally ineffective assistance of counsel.

(ECF No. 1-1, PageID.15.) The court of appeals rejected each of Petitioner’s claims of error and
affirmed the trial court by unpublished opinion dated May 22, 2014. (Mich. Ct. App. Op., ECF No.
1-1, PageID.104-111.) Petitioner then filed a pro per application for leave to appeal in the Michigan
Supreme Court which raised the five issues identified above, and two new issues:
VI.

I was denied effective assistance of counsel because my attorney refused
to/failed to investigate a meritorious insanity defense.

VII.

A party may move for a new trial on the basis of new evidence.

(Pro Per Appl. for Leave to Appeal, ECF No. 1-1, PageID.125, 127.) The Michigan Supreme Court
denied the application by order entered October 28, 2015. (Mich. Ord., ECF No. 1-1, PageID.155.)
Petitioner then filed his petition in this Court raising the same seven issues he raised in the Michigan
Supreme Court. (See Attachment C, ECF No. 1-1, PageID.17-22.)
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,
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

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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). There is no question that Petitioner has raised issues I-V at all levels of the state
courts. Issues VI and VII, however, have never been raised in the trial court or the Michigan Court
of Appeals.
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 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 Osceola 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
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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 October 28,
2015. 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 Wednesday, January 27, 2016. Accordingly, absent tolling, Petitioner
would have one year, until January 27, 2017, in which to file his habeas petition.
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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 781. See also Griffin, 308 F.3d at 653 (holding that sixty days
amounts to a mandatory period of equitable tolling under Palmer).1 Petitioner has more than sixty
days remaining in his limitations period. Assuming that Petitioner diligently pursues his state-court
remedies and promptly returns to this Court after the Michigan Supreme Court issues its decision,
he is not in danger of running afoul of the statute of limitations. Therefore a stay of these
proceedings is not warranted. Should Petitioner decide not to pursue his unexhausted claims in the
state courts, he may file a new petition raising only exhausted claims at any time before the
expiration of the limitations period.
Conclusion
For the foregoing reasons, the Court will dismiss the petition for failure to exhaust
available state-court remedies.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s
dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination

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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). 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. 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.

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that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly
unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that
an issue merits review, when the Court already has determined that the action is so lacking in merit
that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat
anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.
Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under
Rule 4 but granted certificate); Dory v. Comm’r of Corr., 865 F.2d 44, 46 (2d Cir. 1989) (it was
“intrinsically contradictory” to grant a certificate when habeas action does not warrant service under
Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would be
inconsistent with a summary dismissal).
The Sixth Circuit Court of Appeals has disapproved the issuance of blanket denials
of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district
court must “engage in a reasoned assessment of each claim” to determine whether a certificate is
warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme
Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this
Court has examined each of Petitioner’s claims under the Slack standard.
This Court denied Petitioner’s application on the procedural ground of lack of
exhaustion. Under Slack, 529 U.S. at 484, when a habeas petition is denied on procedural grounds,
a certificate of appealability may issue only “when the prisoner shows, at least, [1] that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and [2] that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Both showings must be made to warrant the grant of a
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certificate. Id. The Court finds that reasonable jurists could not debate that this Court correctly
dismissed the petition on the procedural ground of lack of exhaustion. “Where a plain procedural bar
is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could
not conclude either that the district court erred in dismissing the petition or that the petitioner should
be allowed to proceed further.” Id. Therefore, the Court denies Petitioner a certificate of
appealability.
A Judgment consistent with this Opinion will be entered.

Dated:

September 15, 2016

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

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