Farmer #183535 v. Klee
OPINION; Order and Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
BRIAN PRESTON FARMER,
Case No. 1:16-cv-1435
Honorable Janet T. Neff
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 Brian Preston Farmer presently is incarcerated at the Gus Harrison
Correctional Facility. An Ingham County jury convicted Petitioner of two counts of first-degree
criminal sexual conduct (CSC I), MICH. COMP. LAWS § 750.520(b), unlawful imprisonment, MICH.
COMP. LAWS § 750.349(b), and assault with a dangerous weapon (felonious assault), MICH. COMP.
LAWS § 750.82. On December 18, 2013, the circuit court sentenced him as a fourth-offense felony
offender, MICH. COMP. LAWS § 769.12, to imprisonment for 75 to 100 years for each of the CSC-I
convictions, 19 to 50 years for the unlawful-imprisonment conviction, and 5 to 15 years for the
Petitioner appealed his convictions to the Michigan Court of Appeals. The brief filed
by counsel raised the following seven claims for relief:
WAS [PETITIONER] DENIED A FAIR TRIAL AS A RESULT OF THE
ADMISSION OF OTHER ACTS EVIDENCE PURSUANT TO MRE
404(B) AND MRE 403 IN VIOLATION OF THE U.S. AND MICHIGAN
WAS [PETITIONER] DENIED A FAIR TRIAL BY THE ADMISSION OF
HEARSAY STATEMENTS MADE BY THE COMPLAINING WITNESS
IN VIOLATION OF US CONST AM VI, XIV?
WAS [PETITIONER] DENIED A FAIR TRIAL BY THE ADMISSION OF
HEARSAY STATEMENTS MADE BY LINDA THELEN IN VIOLATION
OF US CONST AM VI, XIV?
DID THE TRIAL COURT ERR IN ADMITTING TESTIMONY
REGARDING AN ALLEGED PRIOR SEXUAL ASSAULT BY
[PETITIONER] IN VIOLATION OF US CONST AM VI, XIV?
DID THE TRIAL COURT ERR IN ADMITTING TESTIMONY
REGARDING [PETITIONER’S] FAMILY IN VIOLATION OF US CONST
AM VI, XIV?
DID THE TRIAL COURT ERR IN DENYING [PETITIONER’S] MOTION
DID THE CUMULATIVE EFFECT OF THE TRIAL COURT’S
EVIDENTIARY ERRORS DENY [PETITIONER] A FAIR TRIAL?
(Pet’r’s Br. on Appeal, ECF No. 1-1, PageID.22.) Petitioner filed a pro per supplemental brief
raising the following two additional issues:
THE TRIAL JUDGE ENGAGED IN SUBSTANTIAL AND MATERIAL
MISCONDUCT RESULTING IN A VIOLATION OF HIS
CONSTITUTIONAL DUE PROCESS RIGHT TO A FAIR TRIAL.
THE PROSECUTOR ENGAGED IN MISCONDUCT WHICH DENIED
[PETITIONER] HIS CONSTITUTIONAL DUE PROCESS RIGHT TO A
(Pet’r’s Standard 4 Br. on Appeal, ECF No. 1-1, PageID.74-75.) In a lengthy unpublished opinion
issued on May 26, 2015, the court of appeals rejected all appellate grounds and affirmed the
Petitioner sought leave to appeal to the Michigan Supreme Court. Petitioner does not
specify which issues he presented to that court. On December 22, 2015, the supreme court denied
leave to appeal for lack of merit in the grounds presented.
In his habeas application, Petitioner raises the seven grounds presented by appellate
counsel to the Michigan Court of Appeals on direct appeal. In addition, he raises the following
I NEFFECTI VE APPOINTMENT OF COUNSEL AND
INEFFECTIVENESS OF COUNSEL DENIED [PETITIONER] A FAIR
(Pet., ECF No. 1, PageID.16.)
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 does not directly indicate which grounds he raised on direct appeal
in the Michigan Court of Appeals and the Michigan Supreme Court. Instead, he attaches copies of
the briefs presented to the Michigan Court of Appeals, which show that he raised in his direct appeal
the first seven issues presented in his habeas petition, together with two issues he does not raise in
his habeas petition. While he suggests that he presented his eighth habeas ground on direct appeal,
his attached briefs demonstrate that he did not raise the ineffective assistance of counsel on direct
appeal, at least in the Michigan Court of Appeals. Petitioner does not indicate which issues he
raised in the Michigan Supreme Court, and he does not attach his application for leave to appeal.
Even assuming that he raised the same issues he presented to the Michigan Court of Appeals,
however, Petitioner would have exhausted only the first seven of his eight grounds for relief.
Moreover, even if Petitioner raised his eighth habeas ground, ineffective assistance of
counsel, in the Michigan Supreme Court, he would not have fully exhausted that ground.
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; 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 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 Ingham 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 appears to have 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 December
22, 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 Monday, March 21, 2016. Accordingly, absent tolling, Petitioner
would have one year, until March 21, 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 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,
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 States Supreme Court. Id. at 332.
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
“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
An Order and a Judgment consistent with this Opinion will be entered.
Dated: January 5, 2017
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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