Edick #410069 v. Michigan, People of the State of

Filing 3

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

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Case 1:20-cv-00828-RJJ-RSK ECF No. 3 filed 09/09/20 PageID.28 Page 1 of 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______ JONATHON EDICK, Petitioner, v. Case No. 1:20-cv-828 Honorable Robert J. Jonker PEOPLE OF THE STATE OF MICHIGAN, 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 concludes that the petition is “mixed,” it includes exhausted and unexhausted claims. Because Petitioner has limited time remaining in the period of limitation and dismissal of the “mixed” petition might jeopardize the timeliness of a subsequent petition, the Court will stay this proceeding and hold it in abeyance Case 1:20-cv-00828-RJJ-RSK ECF No. 3 filed 09/09/20 PageID.29 Page 2 of 7 pending Petitioner’s exhaustion of his state court remedies and compliance with the orders of this Court. Discussion I. Factual allegations Petitioner Jonathon Edick is incarcerated with the Michigan Department of Corrections at the Oaks Correctional Facility (ECF) in Manistee, Manistee County, Michigan. On October 13, 2016, following a three-day jury trial in the Kalamazoo County Circuit Court, Petitioner was convicted of domestic violence-third offense, in violation of Mich. Comp. Laws § 750.814, unlawful imprisonment, in violation of Mich. Comp. Laws § 750.349b, third-degree criminal sexual conduct, in violation of Mich. Comp. Laws § 750.520d, and first-degree home invasion, in violation of Mich. Comp. Laws § 750.110a. On November 21, 2016, the court sentenced Petitioner as a fourth habitual offender, Mich. Comp. Laws § 769.12, to concurrent sentences of 25 to 50 years for each offense. On August 19, 2020, 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 August 19, 2020. (Pet., ECF No. 1, PageID.15.) The petition raises four grounds for relief, as follows: I. Trial counsel was ineffective for failing to prepare or investigate facts of Petitioner’s case. II. Prosecutor misrepresented facts of a case to the judge and defense causing prejudice. III. Appellate counsel was ineffective for failing to investigate trial counsel’s ineffectiveness. 2 Case 1:20-cv-00828-RJJ-RSK ECF No. 3 filed 09/09/20 PageID.30 Page 3 of 7 IV. Trial counsel was ineffective for failing to subpoena Marina VanOver’s Verizon phone records and Google phone records from 2/22/2016 through March 1, 2016. (Pet., ECF No.1, PageID.5-10.)1 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, 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, 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 he has exhausted the fourth of his four habeas issues; but, he acknowledges that he has not raised issues I through III at all levels of the state court system. 1 Petitioner makes reference to five habeas grounds; however, the petition includes only four. 3 Case 1:20-cv-00828-RJJ-RSK ECF No. 3 filed 09/09/20 PageID.31 Page 4 of 7 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. To properly exhaust his claim, Petitioner must file a motion for relief from judgment in the Kalamazoo 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 Case 1:20-cv-00828-RJJ-RSK ECF No. 3 filed 09/09/20 PageID.32 Page 5 of 7 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 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. After the Michigan Supreme Court denied his application for leave to appeal, Petitioner filed a petition for certiorari in the United States Supreme Court. The Supreme Court denied his petition for certiorari on October 7, 2019. Accordingly, absent tolling, Petitioner would have one year, until October 7, 2020, in which to file his habeas petition. Petitioner filed the instant petition on August 19, 2020, with seven weeks remaining before expiration of the limitations period. 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 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. Thus, so long as Petitioner’s request for collateral review is pending, the time will not count against 5 Case 1:20-cv-00828-RJJ-RSK ECF No. 3 filed 09/09/20 PageID.33 Page 6 of 7 him. But, until he files his motion and after the Michigan Supreme Court rules on his application for leave to appeal to that court, the statute of limitations will run. 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 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). In the instant case, Petitioner has less than sixty days remaining before the statute of limitations expires. Petitioner therefore would not have the necessary 30 days to file a motion for post-conviction relief or the additional 30 days to return to this court before expiration of the statute of limitations. As a result, were the Court to dismiss the petition without prejudice for lack of exhaustion, the dismissal could jeopardize the timeliness of any subsequent petition. Palmer, 276 F.3d at 781. The Supreme Court has held, however, that the type of stay-and-abeyance procedure set forth in Palmer should be available only in limited circumstances because overexpansive use of the procedure would thwart the AEDPA’s goals of achieving finality and encouraging petitioners to first exhaust all of their claims in the state courts. See Rhines, 544 U.S. at 277. In its discretion, a district court contemplating stay and abeyance should stay the mixed petition pending prompt exhaustion of state remedies if there is “good cause” for the petitioner’s failure to exhaust, if the petitioner’s unexhausted claims are not “plainly meritless” and if there is no indication that the petitioner engaged in “intentionally dilatory litigation tactics.” Id. at 278. Moreover, under Rhines, if the district court determines that a stay is inappropriate, it must allow the petitioner the opportunity to delete the unexhausted claims from his petition, especially in 6 Case 1:20-cv-00828-RJJ-RSK ECF No. 3 filed 09/09/20 PageID.34 Page 7 of 7 circumstances in which dismissal of the entire petition without prejudice would “unreasonably impair the petitioner’s right to obtain federal relief.” Id. Petitioner has specifically moved the Court to grant the stay and abeyance remedy. (ECF No. 2.) He has addressed each of the Rhines factors. Although Petitioner’s presentation is far from overwhelming, he has sufficiently shown: (1) good cause for his failure to exhaust before filing his habeas petition—he contends that his new grounds depend on evidence newly discovered through “freedom of information” requests; (2) that his unexhausted claims are not plainly meritless—Petitioner’s brief statement of each ground does not indicate that any ground is meritless on its face; and (3) that he has not engaged in intentionally dilatory litigation tactics— there is nothing in the litigation history to suggest intentional delays on Petitioner’s part. Accordingly, the Court will grant a stay and hold the petition in abeyance as contemplated by Palmer, 276 F.3d at 781. An order consistent with this opinion will be entered. Dated: September 9, 2020 /s/ Robert J. Jonker ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE 7

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