Holman #403146 v. Trierweiler

Filing 5

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
MICHAEL DAVID HOLMAN,
Petitioner,

Case No. 1:18-cv-86

v.

Honorable Gordon J. Quist

TONY TRIERWEILER,
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 Michael David Holman is incarcerated with the Michigan Department of
Corrections at the Bellamy Creek Correctional Facility (IBC) in Ionia, Michigan. On November
26, 2014, a Muskegon County Circuit Court judge, found Petitioner guilty of two counts of firstdegree criminal sexual conduct (CSC I), MICH. COMP. LAWS § 750.520b, and one count of seconddegree criminal sexual conduct (CSC II), MICH. COMP. LAWS § 750.520c. On January 5, 2015,
the court sentenced Petitioner as a habitual offender-fourth offense, MICH. COMP. LAWS § 769.12,
to concurrent terms of imprisonment of 33 to 50 years for each CSC I conviction and 9 to 30 years
for the CSC II conviction.
On January 22, 2018, 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 January 22, 2018. (Pet., ECF No. 1, PageID.33.)
The petition raises 11 grounds for relief, as follows:
I.

Reversible error occurred when the trial court displayed its bias while
questioning the prosecution’s expert witness on child abuse.

II.

Trial counsel was ineffective for failing to introduce evidence that the
complainants statement at the bonfire was not spontaneous, and failing to
object to hearsay testimony about that statement on that basis, as well as
because the prosecution failed to give any advance notice of its intent to
introduce the statement.

III.

The trial court erred in concluding that Shauna’s bonfire statement was
admissible as a prior consistent statement.

IV.

Petitioner was denied the effective assistance of counsel by the admission
of Shauna’s bonfire statement, which statement the trial court agreed was
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inadmissible hearsay, where counsel’s strategy in introducing the statement
was unreasonable and the statement was unfairly prejudicial.
V.

The prosecutor unfairly influenced the trial court at the Ginther hearing by
distorting and misrepresenting the evidence.

VI.

The prosecutor committed serious misconduct which deprived Petitioner of
a fair trial, when he argued that Petitioner admitted sexual contact with the
complainant, where Petitioner never made any such admission.

VII.

Petitioner is entitled to a reversal on all convictions as there was insufficient
evidence to support a verdict and reversible error occurred when the trial
court improperly based his verdict, in part, on incorrect info that did not
match the witness testimony or evidence presented at trial.

VIII.

Petitioner is entitled to a new trial as the verdict was against the great weight
of the evidence and counsel’s failure to motion the court for a new trial
constitutes ineffective assistance of counsel.

IX.

Trial counsel was ineffective for failing to ask the trial court for additional
funds to explore a second expert witness and for failing to request a pretrial
suppression (taint) hearing.

X.

Trial court abused its discretion or taking on the role of one of the attorneys,
more specifically, the prosecution. The prosecution committed serious
misconduct for the continuous use of leading questions and for argument
not supported by testimony and evidence.

XI.

Trial counsel was ineffective for not objecting to the prosecution’s witness,
Bernadette Stover, who inadmissibly vouched and corroborated out-ofcourt statements and actions made by the declarant and the mother at a
bonfire regarding alleged sexual abuse.

(Pet., ECF No.1, PageID.6-29.)
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
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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 has submitted his Michigan Court of Appeals Standard 4

Supplemental Brief 1 and two applications for leave to appeal filed in the Michigan Supreme Court:
one filed by counsel and one filed by Petitioner under Standard 4. Petitioner’s Standard 4 filing
in the Michigan Supreme Court reveals that he did not raise habeas issue XI, regarding witness
Bernadette Stover, in the Michigan Court of Appeals. (Pet’r’s Standard 4 Appl. for Leave to
Appeal, ECF No. 1-1, PageID.130.) Because Petitioner did not raise the issue in the Michigan
Court of Appeals, he has failed to satisfy the exhaustion requirement.

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Michigan Supreme Court Administrative Order 2004-6 sets forth minimum standards for indigent criminal appellate
defense services. Standard 4 requires counsel to inform a defendant of his right to present claims that counsel will not
present in a brief filed in propria persona. Mich. Admin. Order No. 2004-6.

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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 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. (Pet., ECF No. 1, PageID.3.) 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 Muskegon 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 v. Henry, 513 U.S. at
365-66.
Because Petitioner has some claims that are exhausted and one that is 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-and-abeyance 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

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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 that provision, 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.” 28 U.S.C. § 2244(d)(1)(A). Petitioner appealed his conviction to
the Michigan Court of Appeals and the Michigan Supreme Court. The Michigan Supreme Court
denied his application on January 31, 2017. Petitioner did not petition for certiorari to the United
States Supreme Court (Pet., ECF No. 1, PageID.3), 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 ninety-day period expired on May 1,
2017. Accordingly, absent tolling, Petitioner would have one year, until May 1, 2018, in which to
file his habeas petition. Petitioner filed the instant petition on January 22, 2018, 99 days before
expiration of the limitations period.
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). 2

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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

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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.
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

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 States Supreme Court. Id. at 332.

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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, [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.

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A Judgment and Order consistent with this Opinion will be entered.

Dated: February 13, 2018

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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