Hullihen #866331 v. Klee

Filing 4

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-1282

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 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 Blake Daniel Hullihen presently is incarcerated at the Gus Harrison Correctional
Facility. Following a jury trial in the Osceola County Circuit Court, Petitioner was convicted of two counts
of second-degree murder, MICH. COMP. LAWS § 750.317, and two counts of possessing a firearm during
the commission of a felony (felony firearm), MICH. COMP. LAWS § 750.227b. On March 1, 2013, the
trial court sentenced him to two prison terms of 37 to 75 years on the murder convictions, and two
consecutive terms of 2 years on the felony-firearm convictions.
Petitioner appealed his convictions and sentences to the Michigan Court of Appeals, raising
five 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
THE[R]E WAS NO SELF DEFENSE BECAUSE THE DEFENDANT FIRST
SHOT THE OTHER PE[]RSON, REQUIRES A NEW TRIAL.

III.

AT SENTENCING NO SPECIFIC []REASON AND FACTS W[E]RE
A[RT]ICULATED TO JUSTIFY THE UPWARD DEPARTURE.

IV.

DEFENDANT’S SIXTH AND FOURTEENTH AMENDM[E]NT RIGHTS
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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.

(Attach. A to Pet., ECF No. 1-1, PageID.16.) In an opinion issued on May 22, 2014, the court of
appeals affirmed the convictions and sentences.
Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same five
grounds presented to the court of appeals, together with two new grounds:
V.

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.

(Attach. B to Pet., ECF No. 1-1, PageID.17.) On February 3, 2015, the supreme court ordered that the
case be held in abeyance pending that court’s resolution of People v. Lockridge, No. 149073. See
People v. Hullihen, 858 N.W.2d 445 2015). On October 28, 2015, the supreme court denied leave to
appeal, concluding that Petitioner had failed to establish the threshold showing of plain error under People
v. Lockridge, 870 N.W.2d 502 (Mich. 2015). See People v. Hullihen, 870 N.W.2d 708 (Mich. Oct.
28,2 015).
Petitioner filed the instant habeas application on or about October 26, 2016.1 In his

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 October 26,
2016, and it was received by the Court on October 31, 2016. 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

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application, he raises the seven issues presented to the Michigan Supreme Court.
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 alleges that he raised his first five issues in both the Michigan Court of Appeals
and the Michigan Supreme Court. His final two issues, however, were raised for the first time in the

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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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 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); Dunbar v. Pitcher, No. 98-2068, 2000 WL 179026, at *1 (6th Cir. Feb. 9, 2000); Miller
v. Parker, No. 99-5007, 1999 WL 1282436, at *2 (6th Cir. Dec. 27, 1999); Troutman v. Turner, No.
95-3597, 1995 WL 728182, at *2 (6th Cir. Dec. 7, 1995); Hafley v. Sowders, 902 F.2d 480, 483 (6th
Cir. 1990); accord Parkhurst v. Shillinger, 128 F.3d 1366, 1368-70 (10th Cir. 1997); Ellman v.
Davis, 42 F.3d 144, 148 (2d Cir. 1994); Cruz v. Warden of Dwight Corr. Ctr., 907 F.2d 665, 669 (7th
Cir. 1990); but see Ashbaugh v. Gundy, 244 F. App’x 715, 717 (6th Cir. 2007) (declining to reach
question of whether a claim raised for the first time in an application for leave to appeal to the Michigan
Supreme Court is exhausted). 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
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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 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 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
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review.” Petitioner appealed his conviction to the Michigan Court of Appeals and 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 January 26, 2016.
Accordingly, Petitioner has one year, until January 26, 2017, in which to file his habeas petition. Petitioner
filed the instant petition October 26, 2016.
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 state-court 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 At this time, Petitioner has less than sixty days
remaining before the statute of limitations expires. 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

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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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 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:

December 19, 2016

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

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