Johnson #595438 v. Burt

Filing 8

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
SOUTHERN DIVISION
DAVID HENRY JOHNSON,
Petitioner,

Case No. 1:16-cv-1471

v.

Honorable Janet T. Neff

S. L. BURT,
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 David Henry Johnson is incarcerated with the Michigan Department of
Corrections at the Muskegon Correctional Facility in Muskegon, Michigan. Following a four-day
jury trial in the Tuscola County Circuit Court, Petitioner was found guilty of operating a
methamphetamine laboratory, MICH. COMP. LAWS § 333.7401c(2)(f); manufacture of
methamphetamine, MICH. COMP. LAWS § 333.7401(2)(b)(i); and possession of methamphetamine,
MICH. COMP. LAWS § 333.7403(2)(b)(i). As to each offense, it was Petitioner’s second; therefore,
he was subject to twice the term of imprisonment otherwise authorized. MICH. COMP. LAWS
§ 333.7413(2). On October 4, 2013, the trial court sentenced Petitioner to concurrent terms of
imprisonment of 10 to 20 years for operating the laboratory, 10 to 20 years for manufacture, and 2
to 10 years for possession.1
With the assistance of counsel, Petitioner directly appealed his convictions and
sentences raising five issues:
I.

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A
SPEEDY TRIAL AND WAS DENIED THE RIGHT TO BE TRIED
WITHIN 180 DAYS WHEN, THROUGH NO FAULT OF DEFENDANT,
TRIAL DID NOT COMMENCE.

II.

DEFENDANT WAS DENIED HIS CONSTITUTION RIGHT TO
EFFECTIVE ASSISTANCE OF COUNSEL WHEN TRIAL COUNSEL'S
CUMULATIVE ERRORS DENIED DEFENDANT A FAIR TRIAL.

1
The sentences imposed on October 4, 2013 were reversed by the Michigan Supreme Court on February 2, 2016,
and the matter was remanded to the trial court for resentencing . On May 19, 2016, the trial court reaffirmed the original
sentences. At the time Petitioner committed the methamphetamine offenses, he was on parole for prior offenses. He
is completing his sentences for those prior offenses as well. See http://mdocweb.state.mi.us/otis2/otis2profile.aspx?mdoc
Number=595438. This Court takes judicial notice of the information provided by a search of the MDOC OTIS website
with regard to Petitioner. See, i.e. Carpenter v. Mich. Dep’t of Corr. Time Computation Unit, No. 1:13-cv-313, 2013
WL 1947249 *1 n.1 (W.D. Mich. May 9, 2013); Ward v. Wolfenbarger, 323 F.Supp.2d 818, 821–22 n. 3 (E.D.Mich.
2004).

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III.

DEFENDANT’S CONVICTION WAS BASED ON THE TESTIMONIAL
HEARSAY STATEMENTS OF UNAVAILABLE DECLARANTS AND
SINCE THERE WAS NO OPPORTUNITY TO CROSS EXAMINE THE
DECLARANTS, THE TRIAL COURT VIOLATED DEFENDANT'S
SIXTH AMENDMENT RIGHT TO CONFRONT WITNESSES BY
ADMITTING THE STATEMENTS.

IV.

DEFENDANT WAS DENIED THE RIGHT TO DUE PROCESS AND
FUNDAMENTAL FAIRNESS TO PRESENT A DEFENSE WHEN THE
POLICE FAILED TO PRESERVE KEY EVIDENCE.

V.

DEFENDANT IS ENTITLED TO RESENTENCING BECAUSE THE
STATUTORY SENTENCING GUIDELINES WERE MISSCORED AS TO
THE OFFENSE VARIABLES, WHICH AFFECTED THE STATUTORY
SENTENCING GUIDELINE RANGE.

(Def.’s-Appellant’s Br., ECF No. 1-3, PageID.52-53.) By unpublished opinion issued March 12,
2015, the Michigan Court of Appeals affirmed the convictions and sentences. Petitioner filed an
application for leave to appeal in the Michigan Supreme Court. In lieu of granting leave to appeal
with regard to the sentencing issue, the court reversed and remanded to the trial court “to determine
whether the court would have imposed a materially different sentence under the sentencing
procedure described in People v. Lockridge, 498 Mich. 358[, 870 N.W. 2d 502] (2015).” People v.
Johnson, 873 N.W.2d 565 (Mich. 2016). In all other respects, however, the court denied leave to
appeal. Id.
The trial court held a resentencing hearing on May 19, 2016. The court reaffirmed
it original sentences. With the assistance of counsel, Petitioner appealed his new judgment of
sentence, raising two issues:
VI.

THE TRIAL COURT IMPOSED AN UNREASONABLE SENTENCE OF
120 TO 240 MONTHS IMPRISONMENT FOR
OPERATING/MAINTAINING A LABORATORY INVOLVING
METHAMPHETAMINE AND DELIVERY/MANUFACTURE OF
METHAMPHETAMINE.

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VII.

APPELLANT IS ENTITLED TO BE RESENTENCED BEFORE A
DIFFERENT JUDGE WHERE THE TRIAL COURT AGAIN SCORED
OFFENSE VARIABLE 14 AND AGAIN PLACED HIM INTO AN
INACCURATELY HIGH RANGE FOR THE MINIMUM SENTENCE
NOTWITHSTANDING A PRIOR RULING OF THE MICHIGAN
SUPREME COURT IN THIS CASE AND ESTABLISHED LAW BY
UNCONSTITUTIONALLY USING JUDICIAL FACT-FINDING TO
SCORE THE VARIABLE AND THEREBY INCREASE THE GUIDELINE
RANGE.

(Def.’s-Appellant’s Br., ECF No. 1-4, PageID.104.) Petitioner has also filed a Standard 4 brief in
the court of appeals, but he does not identify the issues raised therein. The Michigan Court of
Appeals has not yet decided Petitioner’s second appeal.
Petitioner has expressed his intent to raise in this petition the five issues he raised in
his direct appeal. The fifth issue, regarding sentencing, was directed to his original sentence. Based
on Petitioner’s argument, the Court reads his Petition as directing the statement and argument
regarding sentencing to the “new” sentence imposed on May 19, 2016. Indeed, his objections to his
“new” sentence are more completely expressed in Issues VI and VII.
In addition, Petitioner has filed a motion to stay his petition and hold it in abeyance
to permit him to return to the trial court and raise five new issues. (ECF No. 5.)
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
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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). There is little question that Petitioner has exhausted his state court remedies
with respect to his first four habeas issues. The same is not true with regard to Issues V, VI, and VII
regarding Petitioner’s sentence.
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 sentencing issues he has presented in this
application and he is presently pursuing it. Petitioner’s sentencing issues are presently before the
Michigan Court of Appeals. With respect to Petitioner’s new judgment of sentence, it is the first
time that court will address the issues. If his sentence is affirmed by the Michigan Court of Appeals,
Petitioner must seek leave to appeal that decision in 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

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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 is still in the process of direct review of the judgment of
sentence entered on May 19, 2016. That judgment has not yet become final by the completion of
direct review. His period of limitation, therefore, has not commenced.
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

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amounts to a mandatory period of equitable tolling under Palmer).2 Petitioner has more than sixty
days remaining in his limitations period. He has the entire 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.
For the same reason that a stay of proceedings is not warranted to permit Petitioner
to pursue Issues V, VI, and VII on direct review, a stay is also not warranted with respect to the five
new issues Petitioner wants to raise 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 five new issues he has presented in his motion. 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 Tuscola 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.

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). 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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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. The Court will also deny Petitioner’s motion to stay (ECF No. 5).
Petitioner’s motion for hearing (ECF No. 4) will also be denied as moot.
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).

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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
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 22, 2017

/s/ Janet T. Neff
Janet T. Neff
United States District Judge

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