McKnight #687302 v. Palmer
Filing
8
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
HOWARD McKNIGHT,
Petitioner,
Case No. 1:16-cv-1260
v.
Honorable Gordon J. Quist
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 will dismiss the petition without prejudice for failure to exhaust
available state-court remedies.
Discussion
I.
Factual allegations
Petitioner Howard McKnight presently is incarcerated at the Michigan Reformatory.
On November 22, 2013, a Wayne County jury convicted him of two counts of kidnapping, MICH.
COMP. LAWS § 750.349, two counts of armed robbery, MICH. COMP. LAWS § 750.529, one count of
first-degree criminal sexual conduct (CSC I), MICH. COMP. LAWS § 75-.520b, two counts of
felonious assault, MICH. COMP. LAWS § 750.82, one count of being a felon in possession of a
firearm, MICH. COMP. LAWS § 75-.224f, and one count of possession of a firearm during the
commission of a felony (felony firearm), MICH. COMP. LAWS § 750.227b. The trial court sentenced
Petitioner on December 12, 2013 to imprisonment for 30 to 60 years on each count of kidnapping,
25 to 60 years on each count of armed robbery, 30 to 60 years for CSC I, 2 to 4 years for each count
of felonious assault, 1 to 5 year for being a felon in possession, and 2 years for felony firearm.
Petitioner appealed his convictions and sentences to the Michigan Court of Appeals,
raising three issues:
1.
Officer Tinsley’s opinion that a photograph of appellant reflects a composite
sketch prepared by him impermissibly encroached on the province of the
jury.
2.
The trial court violated appellant’s due process rights by permitting the
prosecutor to solicit from the officer in charge opinion evidence of
appellant’s alleged guilt.
3.
Appellant was denied a fair trial and defense trial counsel was
constitutionally ineffective in failing to move for a mistrial after a police
officer testified that he compared the composite sketch with a mug shot of
appellant and counsel was ineffective in failing to object.
(Pet., ECF No. 1, PageID.2.) In an unpublished opinion issued on April 21, 2015, the court of
appeals denied all appellate grounds. Petitioner sought leave to appeal to the Michigan Supreme
Court, raising similar, though somewhat differently worded, grounds for relief:
1.
The testimony of Officer Tinsley’s invaded the province of the jury where
the officer used the computer program to create a sketch from a victim’s
memory and he testified that it reflects the defendant’s Photograph.
2.
The defense cross examination of the officer in charge, testimony was
elicited to show that the investigation focused on Defendant rather than
pursuing other suspects denied defendant a fair trial. And on redirect
examination, the prosecutor asked the officer in charge to explain why he
focused on the defendant rather than pursue other suspects, this testimony
invaded the province of the jury.
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3.
Trial counsel was ineffective where he failed to object to the officer
mentioning of a “mug shot” of a “Specific Individual” before arresting the
defendant. The reference to a mug shot denied defendant a fair trial.
(Id.) The supreme court denied leave to appeal on October 28, 2015.
Petitioner filed his habeas application on or about October 24, 2016. His petition
raises the three issues presented to and rejected by the Michigan courts. In addition, Petitioner has
filed a motion to hold the petition in abeyance (ECF No. 7), to permit him to exhaust two additional
issues in the state 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,
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 alleges that he raised the three issues presented in his habeas petition
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to all levels of the Michigan courts. However, he expressly declares his intent to add two new
issues, once he has completed exhaustion in the state courts.
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 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 intends to present some claims that are exhausted and some that
are not, his petition, as he proposes to amend it, would be “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-and-abeyance 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
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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 Tuesday, January 26, 2016. Accordingly, absent tolling, Petitioner
would have one year, until January 26, 2017, in which to file his habeas petition.
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 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
1
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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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 deny Petitioner’s motion to hold the petition
in abeyance (ECF No. 7) and 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
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
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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
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: November 28, 2016
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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