Ditrapani #172494 v. Trierweiler
Filing
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OPINION; Order and Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
MICHAEL ANGELO DITRAPANI,
Petitioner,
Case No. 1:18-cv-356
v.
Honorable Janet T. Neff
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 Angelo Ditrapani is incarcerated with the Michigan Department
of Corrections at the Bellamy Creek Correctional Facility (IBC) in Ionia, Ionia County, Michigan.
Following a jury trial in the Macomb County Circuit Court, Petitioner was convicted of two counts
of first-degree criminal sexual conduct (CSC-I), Mich. Comp. L. § 750.520b, and two counts of
second-degree criminal sexual conduct (CSC-II), Mich. Comp. L. § 750.520c. On August 12,
2015, the court sentenced Petitioner as a habitual offender-fourth offense, Mich. Comp. L.
§ 769.12, to concurrent sentences of 25 to 50 years on each CSC-I count and 6 to 15 years on each
CSC-II count.
Petitioner, with the assistance of counsel, appealed his convictions to the Michigan
Court of Appeals. Petitioner describes the issues he raised in that court; however, he acknowledges
that he has lost most of his legal documents. His listing of issues is suspect in that it does not track
the issues considered and resolved by the court of appeals. Based on the February 14, 2017,
Michigan Court of Appeals opinion affirming Petitioner’s convictions, it appears that Petitioner
raised the following issues on appeal:
I.
Trial counsel rendered ineffective assistance when he failed to file a motion
to adjourn trial to pursue forensic investigation of electronic devices and
social networking sites used by the two minor victims and their mother.
II.
Trial counsel rendered ineffective assistance when he failed to adequately
cross-examine the two minor victims and another minor witness.
III.
Trial counsel rendered ineffective assistance when he failed to challenge
prosecutorial misconduct during the prosecutor’s questioning of the mother
of the two victims and during the prosecutor’s closing and rebuttal
arguments.
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IV.
Petitioner’s trial was rendered fundamentally unfair by prosecutorial
misconduct, including the prosecutor’s vouching for the credibility of the
two victims and the prosecutor’s appeal to the jurors’ sympathy during
closing and rebuttal arguments.
People v. Ditrapani, No. 329676, 2017 WL 603581 (Mich. Ct. App. Feb. 14, 2017).
Petitioner filed a pro per application for leave to appeal the court of appeals’
decision in the Michigan Supreme Court. Petitioner does not identify the grounds he raised in the
Michigan Supreme Court; instead, he simply references the grounds he raised in the Michigan
Court of Appeals. The Michigan Supreme Court denied leave by order entered September 12,
2017. People v. Ditrapani, 900 N.W.2d 882 (Mich. 2017). Petitioner did not file a petition for
certiorari in the United States Supreme Court. (Am. Pet., ECF No. 9, PageID.36.)
On March 29, 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 has not supplied that
date. Petitioner signed his application on March 26, 2018. (Pet., ECF No. 1, PageID.8.) The
petition was received by the Court on March 29, 2018. I have 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)).
Petitioner’s description of his habeas issues is scattered throughout his amended
petition. It appears he is trying to raise the four issues addressed by the Michigan Court of Appeals
and several others:
V.
Petitioner must be resentenced where the offense variables were calculated
improperly.
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VI.
Petitioner must be resentenced where his minimum sentence is more than
2/3 of his maximum sentence.
VII.
Petitioner’s trial was unfair because evidence was withheld.
VIII.
The trial court allowed hearsay testimony.
IX.
The trial court abused its discretion by forcing Petitioner to stay with
counsel after conflict of interest was shown. Petitioner had a right to
replacement of counsel.
(Am. Pet., ECF No. 9, PageID.36-44.)1 There is nothing in the petition or amended petition to
suggest that these issues have been raised in the Michigan Court of Appeals or the Michigan
Supreme Court. Petitioner indicates that these issues were raised in the trial court by way of a
series of motions Petitioner filed beginning April 4, 2016.2 Petitioner simply never appealed the
denial of his motions.
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. Id. at 844, 848; see also Picard v. Connor, 404 U.S. 270,
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Petitioner filed a motion for writ of mandamus with his amended petition. (ECF No. 10.) The motion asks
the Court to rely on the issues Petitioner stated in his initial petition (ECF No. 1), rather than his amended petition
(ECF No. 9). By order entered May 16, 2018, the Court ordered Petitioner to submit an amended petition on the form
provided and required by this Court. (ECF No. 8.) The amended petition takes the place of the initial petition.
Nonetheless, the Court has not disregarded the initial petition. The Court has considered all of the arguments raised
in Petitioner’s initial petition as if it were a brief in support of his amended petition. Accordingly, the Court will enter
an order denying Petitioner’s motion for writ of mandamus.
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The Macomb County Circuit Court docket discloses that Petitioner filed a motion for writ of mandamus on
April 4, 2016; a motion for relief from judgment on April 7, 2016; a motion to vacate sentence on June 3, 2016; and
a motion to reduce sentence on July 12, 2016. See http://courtpa.macombgov.org/eservices/search.page.7.1 (search
case number 2014-003849-FC) (last visited June 20, 2018).
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275-77 (1971); Duncan v. Henry, 513 U.S. 364, 365 (1995); 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. O’Sullivan,
526 U.S. at 845; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d
480, 483 (6th Cir. 1990). 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 v. Perini, 424 F.2d 134, 138-39 (6th Cir. 1970).
Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155,
160 (6th Cir. 1994). Although Petitioner has exhausted issues I-IV, he has failed to exhaust issues
V-IX. He has not presented the issues to the Michigan Court of Appeals or Michigan Supreme
Court.
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).
Typically, a petitioner would raise such issues after appeal by way of 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).
Here, Petitioner has already filed one such motion; however, he filed it prematurely.
Under Michigan Court Rule 6.508(D)(1) the trial court could not grant Petitioner’s motion because
his “judgment of sentence was still subject to challenge on appeal . . . .” Mich. Ct. R. 6.508(D)(1).
Therefore, the Court cannot say with certainty that the state court procedure is unavailable to
Petitioner. When it is uncertain whether the Michigan courts will consider the petitioner’s habeas
claims on the merits, this Court will presume that such state relief is available to the petitioner.
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Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995); Brewer v. Dahlberg, 942 F.2d 328, 340
(6th Cir. 1991). The state courts should have a full and fair opportunity to cure any constitutional
infirmities in petitioner’s conviction. See Brewer, 942 F.2d at 340.
To properly exhaust his claim, Petitioner must file a motion for relief from
judgment in the Macomb 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. O’Sullivan, 526 U.S. at 845; Hafley, 902 F.2d at 483 (“‘[P]etitioner cannot be deemed to
have exhausted his state court remedies as required by 28 U.S.C. § 2254(b) and (c) as to any issue,
unless he has presented that issue both to the Michigan Court of Appeals and to the Michigan
Supreme Court.’”) (citation omitted).
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-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
only the unexhausted claims and stay further proceedings on the remaining portion until the
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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 September 12, 2017. 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 ninety-day period expired on December 12, 2017.
Accordingly, absent tolling, Petitioner would have one year, until December 12, 2018, in which to
file his habeas petition. Petitioner filed the instant petition on March 29, 2018, more than 250 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).3 Petitioner has more than
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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 limitations is tolled from the filing of an application for state post-conviction or other collateral relief until
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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
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:
June 22, 2018
/s/ Janet T. Neff
Janet T. Neff
United States District Judge
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