Davis #232714 v. Woods

Filing 14

OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

JOHN ANTHONY DAVIS,
Petitioner,

Case No. 2:12-cv-318

v.

Honorable R. Allan Edgar

JEFFREY WOODS,
Respondent.
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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 Petitioner has failed to exhaust his available state-court
remedies as to all claims raised in the petition. Because Petitioner has fewer than 60 days remaining
in the limitations period for filing a habeas petition, the Court will not dismiss the action at this time,
pending Petitioner’s compliance with the further directions of this Court set forth in this opinion and
attached order.

Discussion
I.

Factual allegations

Petitioner is incarcerated in the Chippewa Correctional Facility. He was convicted in
the Gogebic County Circuit Court of armed robbery, MICH. COMP. LAWS § 750.529, and assault with
a dangerous weapon, MICH. COMP. LAWS § 750.82. On September 11, 2009, the trial court sentenced
Petitioner as a fourth habitual offender, MICH. COMP. LAWS § 769.12, to concurrent prison terms of
eight to thirty years for the armed robbery conviction and four to fifteen years for the assault
conviction. The Michigan Court of Appeals affirmed Petitioner’s conviction on May 17, 2011, and
the Michigan Supreme Court denied his application for leave to appeal on October 24, 2011.
Petitioner now raises the following grounds for habeas corpus relief:
I.

PETITIONER IS BEING UNLAWFULLY DETAINED IN VIOLATION OF
HIS DUE PROCESS AND EQUAL PROTECTION UNDER THE 5TH AND
14TH AMENDMENT RIGHT[S] TO THE CONSTITUTIONS [SIC] WHEN
THE TRIAL COURT DENIED DURING JURY SELECTION A DEFENSE
CHALLENGE FOR CAUSE.

II.

PETITIONER IS BEING UNLAWFULLY DETAINED IN VIOLATION OF
HIS DUE PROCESS AND EQUAL PROTECTION UNDER THE 5TH AND
14TH AMENDMENT RIGHT[S] TO THE CONSTITUTIONS [SIC] WHEN
THE TRIAL COURT DENIED THE DEFENSE PRETRIAL MOTION TO
QUASH THE BIND-OVER.

III.

PETITIONER IS BEING UNLAWFULLY DETAINED IN VIOLATION OF
HIS DUE PROCESS AND EQUAL PROTECTION UNDER THE 5TH AND
14TH AMENDMENT RIGHT[S] TO THE CONSTITUTIONS [SIC] WHEN
THE TRIAL COURT ENTERED A JUDGMENT OF CONVICTION AND
SENTENCE ON EVIDENCE THAT IS INSUFFICIENT TO SUPPORT THE
CONVICTION.

IV.

PETITIONER IS BEING UNLAWFULLY DETAINED IN VIOLATION OF
HIS DUE PROCESS AND EQUAL PROTECTION UNDER THE 5TH AND
14TH AMENDMENT RIGHT[S] TO THE CONSTITUTION WHEN THE
TRIAL COURT FAILED TO TAKE INTO ACCOUNT ALL MITIGATING
EVIDENCE IN SENTENCING THE PETITIONER.

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V.

PETITIONER IS BEING UNLAWFULLY DETAINED IN VIOLATION OF
THE 8TH AND 14TH AMENDMENT RIGHTS TO THE CONSTITUTION
WHERE THE TRIAL COURT SENTENCED PETITIONER TO A PRISON
TERM OF 8 TO 30 YEARS ON A HABITUAL OFFENDER 4TH
SUPPLEMENT ARISING OUT OF THE ARMED ROBBERY
CONVICTION AND TO A PRISON TERM OF 4 TO 15 YEARS ON A
HABITUAL OFFENDER 4TH SUPPLEMENT ARISING OUT OF THE
ADW CONVICTION.

VI.

PETITIONER IS BEING UNLAWFULLY DETAINED UNDER THE 5TH,
6TH, AND 14TH AMENDMENT RIGHTS TO THE CONSTITUTION
WHEN PETITIONER WAS ENTITLED TO A NEW TRIAL BECAUSE
THE VIDEO EVIDENCE USED TO CONVICT HIM SHOULD HAVE
BEEN EXCLUDED. TRIAL COUNSEL WAS INEFFECTIVE FOR NOT
MOVING TO SUPPRESS AND FAIL[ING] TO OBJECT TO THE VIDEO
EVIDENCE.

VII.

PETITIONER IS BEING UNLAWFULLY DETAINED UNDER THE 6TH
AND 14TH AMENDMENT RIGHTS TO THE CONSTITUTION WHEN
PETITIONER WAS DEPRIVED OF THE EFFECTIVE [ASSISTANCE OF]
APPELLATE COUNSEL AND A MEANINGFUL APPEAL OF RIGHT.

(Am. Pet., 6a-11d, docket #11.)
II.

Failure to exhaust available 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
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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). Because Petitioner raised his first six grounds for habeas corpus relief on direct
appeal in both the Michigan Court of Appeals and the Michigan Supreme Court, the exhaustion
requirement is satisfied with regard to those claims. Petitioner concedes, however, that his seventh
ground for habeas corpus relief was raised for the first time in the Michigan Supreme Court.
Presentation of an issue for the first time on discretionary review to the state supreme court does not
fulfill the requirement of “fair presentation.” Castille v. Peoples, 489 U.S. 346, 351 (1989). Applying
Castille, the Sixth Circuit repeatedly has recognized that a habeas petitioner does not comply with the
exhaustion requirement when he fails to raise a claim in the state court of appeals, but raises it for the
first time on discretionary appeal to the state’s highest court. See Skinner v. McLemore, 425 F. App’x
491, 494 (6th Cir. 2011); Thompson v. Bell, 580 F.3d 423, 438 (6th Cir. 2009); Warlick v.
Romanowski, 367 F. App’x 634, 643 (6th Cir. 2010); Granger v. Hurt, 215 F. App’x 485, 491 (6th
Cir. 2007); Dunbar v. Pitcher, No. 98-2068, 2000 WL 179026, at *1 (6th Cir. Feb. 9, 2000). Unless
the state supreme court actually grants leave to appeal and reviews the issue, it remains unexhausted
in the state courts. Petitioner’s application for leave to appeal was denied, and, thus, the issue was not
reviewed.

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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 unexhausted issue 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, Petitioner has an available state remedy through which he
may exhaust his seventh ground for habeas corpus relief. In order to properly exhaust his claim,
Petitioner must file a motion for relief from judgment in the Gogebic 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.
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, 22 (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 petitioner has exhausted his claims in the state court. Id.; see also
Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002).
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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 limitation 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 and the
Michigan Supreme Court. The Michigan Supreme Court denied his application on October 24, 2011.
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 Monday, January 23, 2012. Accordingly, Petitioner has one year, until January 23, 2013,
in which to file his habeas petition. Petitioner timely filed the instant action on or about August 17,
2012.
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 721. See also Griffin, 308 F.3d at 653 (holding that sixty days
amounts to mandatory period of equitable tolling under Palmer).1 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.

1

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).

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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 over-expansive 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 v. Weber, 544 U.S. 269, 277 (2005).
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 circumstances in which
dismissal of the entire petition without prejudice would “unreasonably impair the petitioner’s right to
obtain federal relief.” Id.
Consequently, if Petitioner wishes to pursue his unexhausted claims in the state courts,
he must show cause within 28 days why he is entitled to a stay of these proceedings. Specifically,
Petitioner must show: (1) good cause for the his failure to exhaust before filing his habeas petition; (2)
that his unexhausted claims are not plainly meritless; and (3) that he has not engaged in intentionally
dilatory litigation tactics. See Rhines, 544 U.S. at 277-78. If Petitioner fails to meet the Rhines
requirements for a stay or fails to timely comply with the Court’s order, the Court will review only his
exhausted claims. In the alternative, Petitioner may file an amended petition setting forth only his
exhausted claims.
An Order consistent with this Opinion will be entered.

Dated:

12/17/2012

/s/ R. Allan Edgar
R. Allan Edgar
United States District Judge
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