Rutledge #666959 v. Winn
OPINION; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
FRED DERRICK RUTLEDGE,
Case No. 1:17-cv-1135
Honorable Paul L. Maloney
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 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:
Defendant was denied his constitutionally guaranteed due process right to a
fair trial when he was convicted with unnoticed and improper bad [acts]
Defendant was denied his due process rights [when] the prosecutor elicited
inadmissible opinion evidence from the police.
(Pet., ECF No. 1, PageID.5, 7.)
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.
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
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
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).
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
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
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:
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
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.
“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.
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
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.’”).
(last visited Jan. 3, 2018).
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
A Judgment consistent with this Opinion will be entered.
January 12, 2018
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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