Stephens #932536 v. Winn

Filing 10

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
SOUTHERN DIVISION

WILLIAM CHANCE STEPHENS,
Petitioner,

Case No. 1:17-cv-145

v.

Honorable Robert J. Jonker

THOMAS WINN,
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 William Chance Stephens is presently incarcerated with the Michigan
Department of Corrections at the Oaks Correctional Facility in Manistee, Michigan. Petitioner is
serving a sentence of 11 years, 10 months to 22 years, 6 months following his Van Buren County
Circuit Court conviction on one count of manslaughter, MICH. COMP. LAWS § 750.321. Petitioner
was sentenced as a habitual offender-second offense, MICH. COMP. LAWS § 769.10.
Petitioner, with the assistance of counsel, directly appealed his conviction and
sentence to the Michigan Court of Appeals. Petitioner raised the following issues:
I.

Mr. Stephens was denied the effective assistance of counsel guaranteed by the
federal and state constitutions where trial counsel failed to investigate the
deceased’s character history of drug dealing, carrying a concealed weapon
and assaulting a police officer when it would have been significant
corroboration of Mr. Stephens’s theory of self defense; where trial counsel
failed to investigate the hotel room for evidence demonstrating why there was
no sign of a struggle; and where trial counsel failed to object to the trial
court’s denial of the jury[’]s request to view the crime scene.

II.

The trial court erred and violated Mr. Stephens’s substantial constitutional
right to due process when it denied the jury’s request to visit the crime scene
after deliberations had begun and further erred when it made its denial
without the presence or waiver of the Mr. Stephens.

III.

The trial court reversibly erred when it permitted the prosecution to introduce
a gruesome video of the victim running, bleeding, panicking and dying
because its probative value was greatly outweighed by its unfairly prejudicial
effect and likelihood to confuse the issues and mislead the jury and should
have been excluded under MRE 403.

IV.

Mr. Stephens’s conviction for manslaughter must be reversed because the
evidence presented was legally insufficient to prove beyond a reasonable
doubt that Mr. Stephens did not defend himself.

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(Appellant’s Br., ECF No. 1, PageID.98.) In Petitioner’s Standard 4 brief he “re-raised” the
sufficiency issue and raised one additional issue:
V.

Mr. Stephens was denied the effective assistance of counsel guaranteed by the
Federal and State constitutions where trial counsel failed to familiarize
himself with applicable case law, failed to object to improper jury
instructions and jury charge, failed to object to prosecution’s cumulative
instances of misconduct of denigrating defendant, shifting of the burden of
proof, misrepresenting evidence, misstating evidence, constant inference and
speculation, unsupported by the evidence. Defense counsel also failed to
object to use of immaterial and irrelevant evidence that was only introduced
to induce sympathy, passion and prejudice in the jury. When the objection
to these many instances would have protected defendant’s right to due
process and prohibited the jury from having to consider and weigh matters
outside of the issue in dispute and given the defendant a fair trial.

Appellant’s Supplemental Br., ECF No. 1-1, PageID.137-138.) The Michigan Court of Appeals
affirmed Petitioner’s conviction and sentence by unpublished opinion entered December 10, 2015.
People v. Stephens, No. 322721 2015 WL 8538751 (Mich. Ct. App. Dec. 10, 2015).
Petitioner filed an application for leave to appeal in the Michigan Supreme Court
raising all of the issues he had raised in the court of appeals, plus one new issue:
VI.

Ineffective assistance of appellate counsel where appellate counsel failed to
establish and argue that trial counsel failed to present a defense under the
proper legal authority of “Castle Doctrine” where the facts, evidence and
testimony supported this substantial defense.

(Br. in Supp. of Mot. to Add New Issue, ECF No. 1, PageID.12.) The supreme court denied leave
as to all issues raised by Petitioner by order entered June 28, 2016. People v. Stephens, 880 N.W.2d
783 (Mich. 2016). Nonetheless, the supreme court remanded the case to the Van Buren County
Circuit 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).” Id.

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On remand, Petitioner informed the Court he did not wish to be resentenced.
Accordingly, on September 7, 2016, the court entered an order declaring that the original sentence
would stand. (Ord., ECF No. 1-2, PageID.240.) Petitioner has not filed an appeal of that order.
Petitioner filed his petition in the United States District Court for the Eastern District
of Michigan on January 25, 2017, raising all of the issues identified above.1 Shortly after filing his
petition, Petitioner also filed a motion for relief from judgment under MICH. CT. R. 6.500 et seq.2
Petitioner has not identified the issues he raised in the motion.
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
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

1

The two ineffective assistance of trial counsel issues (one from counsel’s brief, Issue I, and one from
Petitioner’s brief, Issue V) have been combined. Accordingly, Petitioner lists only five issues in his petition. (Pet., ECF
No. 1, PageID.4.)
2

See http://webinquiry.courts.michigan.gov/WISearchResults/ViewPage1?commoncaseid=584064, Register
of Actions, Case ID 13-019113-FC.

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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 appellate counsel claim in the Michigan Court of Appeals.
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.
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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 his ineffective assistance
of appellate counsel issue: a motion for relief from judgment under MICH. CT. R. 6.500 et seq. If
the motion does not already include the issue, he must amend his motion to add it. 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).

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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.” “[D]irect review cannot conclude for purposes of § 2244(d)(1)(A) until
the ‘availability of direct appeal to the state courts,’ Caspari v. Bohlen, 510 U.S. 383, 390 (1994),
and to this Court, Lawrence, [549 U.S.] at 332-333, has been exhausted.” Jiminez v. Quarterman,
555 U.S. 113, 119 (2009). Where a prisoner’s direct review results in a remand for resentencing,
his direct review concludes “upon the conclusion of direct review of the new sentence he received
at resentencing.” Rashad v. Lafler, 675 F.3d 564, 568 (6th Cir. 2012).
The Van Buren County Circuit Court entered its order maintaining Petitioner’s
original sentence on September 7, 2016. Petitioner has not filed any appeal of the order. Where a
petitioner has failed to properly pursue an avenue of appellate review available to him, the time for
seeking review at that level is counted under § 2244(d)(1)(A). See 28 U.S.C. § 2244(d)(1)(A) (time
for filing a petition pursuant to § 2254 runs from “the date on which the judgment became final by
the conclusion of direct review or the expiration of time for seeking such review.”) (emphasis added).
Petitioner has six months, until March 7, 2017, in which to file a delayed application for leave to
appeal in the Michigan Court of Appeals. See MICH. CT. R. 7.205(G)(3). If Petitioner fails to file
a timely appeal to the Michigan Court of Appeals, his conviction will become final when his time
for seeking review in that court expires.3 See Williams v. Birkett, 670 F.3d 729, 731 (6th Cir. 2012)
(holding that a defendant’s conviction became final when the time for seeking review under Mich.

3

If Petitioner files an appeal, his conviction and sentence would become final when the appeal process is final:
after the Michigan Supreme Court issues its decision.

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Ct. R. 7.205(F)(3) expired); see also Gonzalez v. Thaler, 132 S. Ct. 641, 655 (2012) (holding that,
because the Supreme Court can review only judgments of a state’s highest court, where a petitioner
fails to seek review in the state’s highest court, the judgment becomes final when the petitioner’s
time expires for seeking state-court review). Accordingly, absent tolling, if Petitioner does not file
an application for leave to appeal in the Michigan Court of Appeals by March 7 , 2017, Petitioner
would have one year, until March 7, 2018, in which to file his habeas petition. In this case, however,
Petitioner filed a post conviction motion for relief on February 8, 2017, tolling the running of the
period of limitation under 28 U.S.C. 2244(d)(2) before the period even 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
amounts to a mandatory period of equitable tolling under Palmer).4 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.

4

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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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
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
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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:

March 7, 2017

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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