Mosher #576855 v. Trierweiler

Filing 14

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

JOSHUA LEE MOSHER,
Petitioner,

Case No. 1:16-cv-1424

v.

Honorable Gordon J. Quist

TONY TRIERWEILER,
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 Joshua Lee Mosher is presently incarcerated with the Michigan Department
of Corrections at the Bellamy Creek Correctional Facility in Ionia, Michigan. Petitioner is serving

three concurrent sentences of 25 to 50 years’ imprisonment following his February 17, 2014
conviction on three counts of first-degree criminal sexual conduct, MICH. COMP. LAWS
§ 750.520b(1)(a).
With the assistance of counsel, Petitioner appealed his convictions to the Michigan
Court of Appeals. He raised two issues:
I.

DETECTIVE TAMMINGA REPEATEDLY VOUCHED FOR THE TRUTH
AND CREDIBILITY OF THE COMPLAINANT THROUGHOUT THE
COURSE OF THE VIDEO INTERROGATION OF MR. MOSHER THAT
WAS PLAYED FOR THE JURY. WAS THIS INCESSANT VOUCHING
IMPROPER AND PREJUDICIAL, DID IT INVADE THE JURY’S
PROVINCE AS SOLE FACT FINDERS, AND ULTIMATELY DEPRIVE
MR. MOSHER OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL?
WAS TRIAL COUNSEL INEFFECTIVE FOR PERMITTING THE
ADMISSION OF INADMISSIBLE EVIDENCE VOUCHING FOR THE
COMPLAINANT’S CREDIBILITY?

II.

DID THE TRIAL COURT VIOLATE MR. MOSHER’S DUE PROCESS
RIGHTS BY PERMITTING THE PROSECUTOR TO INTRODUCE A
SEPARATE SEXUAL ASSAULT ALLEGATION BY [ANOTHER
ALLEGED VICTIM]? DID THE PREJUDICIAL EFFECT OF HER
TESTIMONY SUBSTANTIALLY OUTWEIGH THE PROBATIVE
VALUE?

(Appellant’s Br., ECF No. 12-1, PageID.85.) The Michigan Court of Appeals affirmed the trial
court by opinion entered May 21, 2015. (Op., ECF No. 12-1, PageID.149-151.)
Petitioner filed an application for leave to appeal to the Michigan Supreme Court
raising the same two issues. (Appellant’s Br., ECF No. 12-2, PageID.159.) That court denied
leave by order entered May 2, 2016. (Order, ECF No. 12-2, PageID.216.)
Petitioner then returned to the trial court and, on November 17, 2016, filed a pro per
motion for relief from judgment in accordance with MICH. CT. R. 6.500 et seq. Petitioner raised five
new issues in his motion:
i
III.

THE INSUFFICIENT EVIDENCE RESULTING IN A CONVICTION WAS
AGAINST THE GREAT WEIGHT OF THE EVIDENCE THEREBY
HARMING HIS CONSTITUTIONAL RIGHT TO A FAIR TR[IA]L.
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IV.

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
ALLOWING ADMISSION OF HEARSAY (MRE 803.A) IN VIOLATION
OF THE DEFENDANT[‘]S CONSTITUTIONAL RIGHT TO A FAIR
TRIAL.

V.

THE TRIAL COURT ABUSED ITS DISCRETION WHERE THE SITTING
TRIAL COURT JUDGE HAD PREVIOUSLY PROSECUTED THE
DEFENDANT IN A PRIOR COURT MATTER RESULTING IN
EXTREME JUDIC[I]AL BIAS, THE JUDGE SHOULD HAVE RECUSED
HIMSELF.

VI.

THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF COU[N]SEL BECAUSE BOTH HIS
TRIAL AND APPELLATE COUNSELS FAILED TO INVESTIGATE
AND PRESENT A SUBSTANTIAL DEFENSE BY FAILING TO
CONDUCT A REASONABLE INVESTIGATION, INTERVIEW
WITNESSES, AND CALL EXPERT TESTIMONY/WITNESSES AND/OR
QUESTION THEM ADEQUATELY.

VII.

THE DEFENDANT SUBMITS GOOD CAUSE AND PREJUDICE FOR
FAILURE TO BRING THESE ISSUES IN LEAVE TO APPEAL
PROCEEDINGS, AS INEFFECTIVE ASSISTANCE OF APPELLATE
COUNSEL PREVENTED THE RAISING OF THESE ISSUES.

(Mot., ECF No. 12-2, PageID.229.) The trial court has not ruled on the motion.
On December 8, 2016, Petitioner filed his petition raising all seven of the issues
stated above.
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
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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 raises seven issues in his habeas petition. With respect to Issues I
and II, they were raised in Petitioner’s direct appeal and he has properly exhausted his state court
remedies. With respect to Issues III-VII, Petitioner acknowledges that he raised them for the first
time in a motion for relief from judgment under MICH. CT. R. 6.500 et seq. filed just three weeks
before Petitioner filed his habeas petition. (Mot. and Br., ECF No. 12-2, PageID. 229-264; Pet.,
ECF No. 1.) As of the date Petitioner filed his amended petition, January 19, 2017, the trial court
had not yet decided the motion and, therefore, the issues had never been presented to the Michigan
Court of Appeals or the Michigan Supreme Court.
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
is in the process of pursuing the one available procedure by which to raise Issues III-VII: a motion
for relief from judgment under MICH. CT. R. 6.500 et seq. 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

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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 Petitioner’s motion for

reconsideration of his application for leave to appeal on July 26, 2016. 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 Monday,
October 24, 2016. Accordingly, absent tolling, Petitioner would have one year, until October 24,
2017, in which to file his habeas petition. In this case, however, Petitioner filed a post conviction
motion for relief on November 17, 2016, tolling the running of the period of limitation under 28
U.S.C. 2244(d)(2) after it had run for less than one month.
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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 far more than
sixty days remaining in his limitations period. Assuming that Petitioner diligently pursues his statecourt 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
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

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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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
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
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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: February 17, 2017

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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