Brandon #396153 v. Burt
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
Case No. 1:16-cv-1433
Honorable Robert J. Jonker
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.
Petitioner is presently incarcerated with the Michigan Department of Corrections in
the Muskegon Correctional Facility in Muskegon Heights, Michigan. Petitioner is presently serving
a number of sentences for offenses committed on November 2, 2001; July 11, 2006; October 20,
2008; and February 8, 2014. This petition challenges the convictions and sentences relating to the
offenses committed on February 8, 2014.1
On July 30, 2014, following Petitioner’s jury conviction, the Kent County Circuit
Court sentenced Petitioner to terms of imprisonment on three criminal counts: 2 to 5 years for felon
in possession of a firearm, MICH. COMP. LAWS § 750.224f; 2 years to 5 years for carrying a
concealed weapon, MICH. COMP. LAWS § 750.227; and 2 years for felony firearm, MICH. COMP.
LAWS § 750.227b. Petitioner was sentenced as an habitual offender, fourth offense, MICH. COMP.
LAWS § 769.12.
With the assistance of counsel, Petitioner directly appealed his conviction raising two
Defendant-Appellant’s constitutional right to due process of law, US Const,
Am, XIV; Const 1963, art I, section 17, was violated when the evidence of
Carrying a Concealed Weapon, Felon in Possession of a Weapon, and Felony
Firearm was legally insufficient to convict him of those offenses at trial.
The trial court abused its discretion by not ruling on trial counsel’s request
to excuse the jury panel and pool and Defendant-Appellant was denied his
constitutional right to be tried by a fair and impartial jury. US Const,
Amend VI; Const 1963, Art 1 § 20.
On that date, Petitioner fled a car when it was stopped by a police officer for failure to display a license plate.
(Appellant’s Br., ECF No. 1-1, PageID.21-22.) He was ultimately apprehended. (Id.) Along the trail of his flight, police
officer found a cell phone which Petitioner acknowledged was his. (Id.) Near the phone, police found a gun which
Petitioner claimed was not his. (Id.) The jury concluded otherwise.
(Appellant’s Br., ECF No. 1-1, PageID.18.)2 The court of appeals affirmed Petitioner’s convictions.
People v. Brandon, No. 323334, 2016 WL 1612750 (Mich. Ct. App. Apr. 21, 2016).
Petitioner then filed a pro se application for leave to appeal in the Michigan Supreme
Court raising the two issues he raised in the court of appeals and one new issue:
Defendant was deprived the full effective assistance of competent counsel at
trial level as guaranteed by the VI and XIV Ams of the U.S. Const; Mich
Const 1963, Art I, § 2, 17 and 207.
(Appl. for Leave to Appeal, ECF No. 1-1, PageID.39.)3 The supreme court denied leave by order
entered October 26, 2016. People v. Brandon, 886 N.W.2d 625 (Mich. 2016).
On December 13, 2016, Petitioner filed this petition raising the three issues he raised
in the Michigan Supreme Court.4
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
Petitioner also filed a Standard 4 brief raising a sentencing issue. People v. Brandon, No. 323334, 2016 WL
1612750 (Mich. Ct. App. Apr. 21, 2016). He prevailed on that issue-the court of appeals ruled Petitioner’s sentence for
carrying a concealed weapon should run concurrently with his felony firearm sentence, not consecutively. Id.
Petitioner identified five specific instances of ineffective assistance by his trial counsel. (Appl. for Leave to
Appeal, ECF No. 1-1, PageID.61-64.)
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 13, 2016, and it was received by the Court on December 15, 2016. Thus, it must have been handed to prison
officials for mailing at some time on or between those dates. I have 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)).
(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). The appellate pleadings he has submitted with his petition indicate that Petitioner
never raised his ineffective assistance of counsel claim in 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 Kent 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 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 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 has not yet expired. It would expire on January 24, 2017. Accordingly, absent
tolling, Petitioner would have one year, until January 24, 2018, 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).5 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.
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
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.
“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
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,  that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and  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
A Judgment consistent with this Opinion will be entered.
January 17, 2017
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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