Hanna #241392 v. Trierweiler

Filing 10

OPINION; 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
ERIC RURAL HANNA,
Petitioner,

Case No. 1:17-cv-656

v.

Honorable Janet T. Neff

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 Eric Rural Hanna presently is incarcerated at the Bellamy Creek
Correctional Facility. Following a jury trial in the Chippewa County Circuit Court, Petitioner was
convicted of nine offenses: three counts of assault with intent to commit great bodily harm less than
murder (GBH), MICH. COMP. LAWS § 950.84; five counts of assault with a dangerous weapon
(felonious assault), MICH. COMP. LAWS § 750.82; and one count of first-degree criminal sexual
conduct (CSC I), MICH. COMP. LAWS § 750.520b. On January 30, 2014, the court sentenced him
to a prison terms of 2 years and 10 months to 20 years on each of the GBH convictions, a term of
2 years and 1 month to 8 years on each of the felonious-assault convictions, and 16 years and 8
months to 60 years on the CSC-I conviction.
Petitioner appealed his convictions to the Michigan Court of Appeals. In the brief
filed by counsel, together with the pro per brief filed by Petitioner, the appeal raised five claims:
(1) trial court error in admitting, and defense counsel erred in failing to object to, corroborative
testimony of a police officer; (2) the trial court failed to properly instruct on GBH with respect to
specific intent; (3) the trial court failed to properly inquire into Petitioner’s request for substitution
of counsel; (4) the trial court failed to give the voir dire oath to jurors, as required by Michigan
statute and court rule, and counsel was ineffective in failing to object; and (5) defense counsel
deprived Petitioner of his right to an impartial jury. In an unpublished opinion issued on November
19, 2015, the trial court rejected all appellate grounds and affirmed the convictions.
Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same
five issues presented to and rejected by the Michigan Court of Appeals. The supreme court denied
leave to appeal on June 28, 2016.
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On July 10, 2017, Petitioner filed a motion for relief from judgment in the Chippewa
County Circuit Court, raising four new grounds for relief: (1) the trial court erred when it
considered misdemeanor convictions to enhance the sentence under the habitual-offender act; (2)
ineffective assistance of trial and appellate counsel in not challenging the scoring of Offense
Variable 3; (3) ineffective assistance of appellate counsel in failing to raise a claim of improperly
added charges; and (4) ineffective assistance of trial counsel in failing to challenge the absence of
African Americans in the jury pool. Apparently, the trial court has not yet decided the motion.
Petitioner filed his habeas application on or about July 9, 2017.1 He presents all nine
grounds raised on either direct or collateral review. Petitioner acknowledges that his last four
grounds are unexhausted, and he has filed a motion (ECF No. 3), seeking to hold the petition in
abeyance pending completion of state-court review of those claims.
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

1

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 July 9, 2017,
and it was received by the Court on July 14, 2017. Thus, it must have been handed to prison officials for mailing at some
time between those dates. For purposes of this opinion, the Court has 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)).

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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). Petitioner alleges that his first five grounds for relief are exhausted. He
acknowledges, however, that Grounds VI through IX remain pending in the trial court and have not
been presented to the state appellate 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 issues he has presented in this application:
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 filed his one
allotted motion, but he has not awaited the state court’s resolution, nor has he appealed the result
to both the Michigan Court of Appeals and the Michigan Supreme Court. Therefore, the Court
concludes that he has at least one available state remedy. In order to properly exhaust his claim,
Petitioner must allow the Chippewa County Circuit Court to complete its review of his already-filed
motion for relief from judgment. 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.
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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 June 28,
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

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ninety-day period expired on Monday, September 26, 2016. Accordingly, absent tolling, Petitioner
would have one year, until September 28, 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). 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).
Petitioner has already filed his motion for relief from judgment, at which point he had more than 60
days remaining. The statute of limitations will remain tolled from the date he filed his motion for
relief from judgment until a decision is issued by the Michigan Supreme Court. See Lawrence v.
Florida, 549 U.S. 327 (2007). However, the statute will not be tolled during the time that Petitioner
petitions for writ of certiorari in the United Stated Supreme Court, should he choose to do so. Id.
at 332.
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.

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Conclusion
For the foregoing reasons, the Court will dismiss the petition for failure to exhaust
available state-court remedies. The Court also will deny Petitioner’s motion (ECF No. 3) to hold
the petition in abeyance.
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

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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:

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

August 29, 2017

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