Rutledge #666959 v. Winn

Filing 4

OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ FRED DERRICK RUTLEDGE, Petitioner, Case No. 1:17-cv-1135 v. Honorable Paul L. Maloney THOMAS WINN, Respondent. ____________________________/ 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 Fred Derrick Rutledge is incarcerated with the Michigan Department of Corrections at the Saginaw Correctional Facility (SRF) in Freeland, Michigan. On September 4, 2015, a Kent County Circuit Court jury found Petitioner guilty of assault by strangulation, MICH. COMP. LAWS § 750.84(1)(a). The jury was unable to come to a unanimous decision on an additional charge of assault with intent to commit murder, MICH. COMP. LAWS § 750.83. People v. Rutledge, No. 330246, 2017 WL 791291, at *1 n.1 (Mich. Ct. App. Feb. 28, 2017). On October 1, 2015, the court sentenced Petitioner as a habitual offender-fourth offense, MICH. COMP. LAWS § 769.12, to a term of imprisonment of 11 to 25 years. On December 21, 2017, Petitioner filed his habeas corpus petition. 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 placed his petition in the prison mailing system on December 21, 2017. (Pet., ECF No. 1, PageID.29.) The petition raises 2 grounds for relief, as follows: I. Defendant was denied his constitutionally guaranteed due process right to a fair trial when he was convicted with unnoticed and improper bad [acts] evidence. II. Defendant was denied his due process rights [when] the prosecutor elicited inadmissible opinion evidence from the police. (Pet., ECF No. 1, PageID.5, 7.) 2 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 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 acknowledges that he has not raised his habeas issues in the Michigan Supreme Court. He claims that he did not receive timely notice of the Michigan Court of Appeals’ decision denying relief on Petitioner’s appeal as of right. (Pet., ECF No. 1, PageID.5.) He indicates it was too late to file an application in the Michigan Supreme Court once he discovered the court of appeals had denied him relief. 3 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. 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. The Michigan Court of Appeal denied relief on February 28, 2017. Petitioner did not file a timely application for leave to appeal in the Michigan Supreme Court. Where a petitioner has failed to 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). However, such a petitioner is not entitled to also count the 90day period during which he could have filed a petition for certiorari to the United States Supreme 4 Court. See 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 for seeking that review expires). Under Michigan law, a party has 56 days in which to apply for leave to appeal to the Michigan Supreme Court. See Mich. Ct. R. 7.302(C)(2). Accordingly, Petitioner’s conviction became final on Tuesday, April 25, 2017, 56 days after the court of appeals’ decision. Absent tolling, Petitioner would have one year, until April 25, 2018, in which to file his habeas petition. In Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002), the Sixth Circuit held that when the dismissal of a “mixed”1 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. The instant case does not present a mixed petition because none of Petitioner’s claims are exhausted. It is unclear whether Palmer applies to a “non-mixed” petition. Even if Palmer applied, however, Petitioner would not be entitled to a stay. The Palmer court indicated that thirty days was a reasonable amount of time for a petitioner to file a motion for post-conviction relief in state court, and another thirty days was a reasonable amount of time for a petitioner to return to federal court after he has exhausted his state-court 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).2 1 A “mixed petition” is a habeas corpus petition that contains both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 522 (1982). 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 5 Petitioner filed the instant petition on December 21, 2017, 125 days before expiration of the limitations period. 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. The exhaustion requirement is premised on “the presumption that states maintain adequate and effective remedies to vindicate federal constitutional rights.” Turner v. Bagley, 401 F.3d 718, 724 (6th Cir. 2005). The habeas statute identifies circumstances where a habeas petitioner may avoid the exhaustion requirement because the premise of the exhaustion requirement—adequate and effective state remedies—has failed: (b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-(A) the State; or the applicant has exhausted the remedies available in the courts of (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant. 28 U.S.C. § 2254. Courts have found circumstances excusing a failure to exhaust where there is “‘[i]nordinate delay in adjudicating state court claims[,]’” Phillips v. White, 851 F.3d 567, 576 (6th Cir. 2017) (quoting Workman v. Tate, 957 F.2d 1339, 13544 (6th Cir. 1992)); where a claim is 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. 6 “considered, though ignored, by the state-appellate courts[,]” Sanders v. Lafler, 618 F. Supp. 2d 724, 732 (E.D. Mich. 2009); or where there is no state corrective process, as is the case with respect to an equal protection challenge to a parole denial, Jackson v. Jamrog, 411 F.3d 615, 618 (6th Cir. 2005). Petitioner has failed to identify any extraordinary circumstance that excuses his failure to exhaust. There has been no inordinate delay. Indeed, any delay in resolution of Petitioner’s initial appeal was the product of his request to extend the time for filing his brief and his stipulation to a similar extension for the appellee.3 The court of appeals decided the case less than thirty days after briefing was complete. This is not a case where Petitioner’s claims have not been considered, but have instead been ignored, by the Michigan appellate courts. Moreover, state corrective process remains. Petitioner’s failure to exhaust, therefore, is not excused under the statute. Petitioner argues that his failure to timely file an application for leave to appeal is the result of ineffective assistance from his appellate counsel. It is possible that ineffective assistance of counsel may excuse Petitioner’s procedural default. But, the issue of ineffective assistance as an excuse must also be exhausted in the state courts before this court can consider it. Edwards v. Carpenter, 529 U.S. 446, 452 (2000) (“‘[A] claim of ineffective assistance,’ we said, generally must ‘be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default.’”). 3 See (last visited Jan. 3, 2018). 7 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 8 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: January 12, 2018 /s/ Paul L. Maloney Paul L. Maloney United States District Judge 9

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