Jones #109386 v. Boynton

Filing 3

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

J A M E S JR. JONES #109386, P e titio n e r , v. J O H N BOYNTON, R e s p o n d e n t. ____________________________________/ C a s e No. 2:08-cv-215 H O N . ROBERT HOLMES BELL

O P IN IO N P e titio n e r James Jr. Jones #109386 filed this petition for writ of habeas corpus, c h a lle n g in g the validity of his state court conviction. Upon a review of the petition, the Court c o n c lu d e s that Petitioner has not exhausted his available state court remedies as required by 28 U .S .C . § 2254. A petitioner in a federal habeas corpus proceeding is required to exhaust his available s ta te remedies, except when there is an absence of available state corrective process, or the existence o f circumstances renders such process ineffective to protect the rights of the prisoner. 28 U.S.C. § 2 2 5 4 (b ) and (c). Moreover, it is the Petitioner's burden to prove exhaustion. Rust v. Zent, 17 F.3d 1 5 5 , 160 (6th Cir. 1994). In Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198 (1982), the Supreme Court held that a District Court must dismiss a habeas corpus petition containing unexhausted claims if state r e m e d ie s remain available. The Sixth Circuit has also indicated that this court must dismiss a p e titio n for habeas corpus relief where that petition contains unexhausted claims. See Boggs v.

E v itts, 818 F.2d 534 (6th Cir. 1987). However, exhaustion is not jurisdictional. Granberry v. Greer, 4 8 1 U.S. 129, 131, 107 S. Ct. 1671, 1673-74 (1987). As a prudential rule, exhaustion is required u n le ss "special circumstances" exist. Id. at 134-136. See also Hafley v. Sowders, 902 F.2d 480 (6th C ir. 1990); Weaver v. Foltz, 888 F.2d 1097 (6th Cir. 1989).1 The Court concludes that such " s p e c ia l circumstances" do not exist in the instant action and therefore exhaustion of available state re m e d ie s should be required. T h e question remains whether there are state remedies still available to the Petitioner. P u rsu a n t to state law, Petitioner is now foreclosed from pursuing a motion for new trial, see MCR 6 .4 3 1 (A )(1 ) (generally prohibiting motions for new trials more than 42 days from entry of ju d gm e n t), or from seeking further direct appellate review, see MCR 7.205(F)(3) (generally p ro h ib itin g late appeals more than 12 months after entry of an order or judgment on the merits), in th e state courts. In his application for habeas corpus relief, Petitioner states that he did

file a "Motion for Relief from Judgment," in the Wayne County Circuit Court on October 18, 2006. P e titio n e r states that he did not receive a ruling on this motion until June 18, 2008. It does not a p p e a r that Petitioner filed an appeal regarding his motion for relief from judgment in either the

It has been suggested that the holding in Granberry can be read as giving only appellate c o u rts discretion to reach the merits of claims presented in mixed petitions. See for example, Ybarra v . Sumner, 678 F. Supp. 1480 (D. Nev. 1988). Cf. Plunkett v. Johnson, 828 F.2d 954, 956 (2d Cir. 1 9 8 7 ); Campas v. Zimmerman, 876 F.2d 318, 323 (3d Cir. 1989) (dicta). Without analysis, the Sixth C irc u it recently remarked that the district courts have the discretion to excuse exhaustion where the f e d e r a l claim is plainly meritless and it would be a waste of time and judicial resources to require e xh a u stio n . Cain v. Redman, 947 F.2d 817, 820 (6th Cir. 1991) (citing Prather v. Rees, 822 F.2d 1 4 1 8 , 1422 (6th Cir. 1987)), cert. denied, 503 U.S. 922, 112 S. Ct. 1299 (1992). Likewise a federal h a b e a s court need not require that a federal claim be first presented to the state courts if it is clear th a t the state courts would hold the claim procedurally barred or efforts to exhaust would otherwise b e futile. See e.g. Harris v. Reed, 489 U.S. 255, 263, n.9, 109 S. Ct. 1038, 1043 n.9 (1989).

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M ic h iga n Court of Appeals or the Michigan Supreme Court. Petitioner is not barred from filing an a p p lic a tio n to file a late appeal, as it has been less than one year since the Circuit Court's decision. B e c a u se Petitioner has not exhausted his available state court remedies, the petition will be d is m i s s e d . In addition, if Petitioner should choose to appeal this action, a certificate of a p p e a la b ility will be denied as to each issue raised by the Petitioner in this application for habeas c o rp u s relief. Under 28 U.S.C. § 2253(c)(2), the court must determine whether a certificate of a p p e a la b ility should be granted. A certificate should issue if Petitioner has demonstrated a

" su b sta n tia l showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A dismissal of P e titio n e r's action under Rule 4 of the Rules Governing § 2254 Cases is a determination that the h a b e a s action, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for th is court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue m e rits review, if the court has already 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 th e court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 4 9 0 (9th Cir. 1990) (requiring reversal where court summarily dismissed under Rule 4 but granted c e rtific a te ); Dory v. Commissioner of Correction of the State of New York, 865 F.2d 44, 46 (2d Cir. 1 9 8 9 ) (it was "intrinsically contradictory" to grant a certificate when habeas action does not warrant s e rv ic e under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing c e rtific a te would be inconsistent with a summary dismissal). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. Aug. 27, 2001). Rather, the

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d is tr ic t court must "engage in a reasoned assessment of each claim" to determine whether a c e rtific a te is warranted. Id. Each issue must be considered under the standards set forth by the S u p re m e Court in Slack v. McDaniel, 529 U.S. 473 (2000).Murphy, 263 F.3d at 467. Consequently, th e Court has examined each of Petitioner's claims under the Slack standard. U n d e r Slack, 529 U.S. at 484, when a habeas petition is denied on procedural g ro u n d s , a certificate of appealability may issue only "when the prisoner shows, at least, [1] that ju r is ts of reason would find it debatable whether the petition states a valid claim of the denial of a c o n s titu tio n a l right and [2] that jurists of reason would find it debatable whether the district court w a s correct in its procedural ruling." Both showings must be made to warrant the grant of a c e rtific a te . Id. The Court concludes that reasonable jurists could not debate that each of Petitioner's c la im s are properly dismissed because he failed to exhaust his state court remedies. "Where a plain p r o c e d u r a l bar is present and the district court is correct to invoke it to dispose of the case, a re a s o n a b le jurist could not conclude either that the district court erred in dismissing the petition or th a t the Petitioner should be allowed to proceed further." Id. Therefore, the Court will deny P e titio n e r a certificate of appealability.

D a te d : O c to b e r 22, 2008

/s/ Robert Holmes Bell ROBERT HOLMES BELL U N IT E D STATES DISTRICT JUDGE

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