Cross #258301 v. Woods

Filing 5

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

JAMES ANTHONY-WILLIE CROSS,
Petitioner,

Case No. 2:12-cv-408

v.

Honorable R. Allan Edgar

JEFF 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 will dismiss the petition without prejudice for failure to exhaust
available state-court remedies.

Discussion
I.

Factual allegations

Petitioner presently is incarcerated at the Chippewa Correctional Facility. Following
a jury trial in Kent County Circuit Court, Petitioner was convicted of felony murder, MICH. COMP.
LAWS § 750.316(1)(b), assault with intent to rob while armed, MICH. COMP. LAWS § 750.89, and
possession of a firearm during the commission of a felony, MICH. COMP. LAWS § 750.227b.
Petitioner was sentenced as a fourth habitual offender, MICH. COMP. LAWS § 769.12, to life
imprisonment for the felony murder conviction, 50 to 95 years in prison for the assault with intent
to rob while armed conviction and five years’ imprisonment for possession of a firearm during the
commission of a felony. The circuit court entered its judgment of convictions and sentences on
November 3, 2009. Plaintiff appealed his convictions to the Michigan Court of Appeals and the
Michigan Supreme Court. On June 23, 2011, the Michigan Court of Appeals issued an unpublished
opinion affirming the convictions and sentences. The Michigan Supreme Court denied leave to
appeal on November 21, 2011, because it was not persuaded that the questions presented should be
reviewed by the court.
Petitioner raises the following thirteen grounds in his habeas petition:
I.

WHERE ENORMOUS PROSECUTION RESOURCES WERE PUT
INTO A 2009 TRIAL OF A 2007 HOMICIDE AND ON THE DAY
OF TRIAL DEFENSE COUNSEL MADE AN ORAL REQUEST
FOR ADJOURNMENT OF THE TRIAL FOR GUNPOWER
RESIDUE TESTING, WHICH IS THE LINCHPIN OF THE
DEFENSE THEORY ON THE CASE, IT WAS (1) ERROR TO
DENY ADJOURNMENT OF THE TRIAL AND (2) INEFFECTIVE
ASSISTANCE OF COUNSEL FOR FAILING TO PROPERLY
INVESTIGATE THE ABSENCE OF GUNPOWER RESIDUE ON
JAMES CROSS’ CLOTHING. U.S. CONST. AMENDS. V, VI
AND XIV?

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II.

[DID] IMPROPER EVIDENCE (A) THAT DEFENDANT HAS
BEEN IN PRISON AND (B) OF BLOODY PHOTOGRAPHS OF
DECEASED, DEPRIVE[] DEFENDANT OF DUE PROCESS OF
LAW REQUIRING A NEW TRIAL?

III.

WHERE THE PROSECUTOR GAVE A KEY WITNESS USE
IMMUNITY AT THE INVESTIGATIVE SUBPOENA, IT WAS (1)
PROSECUTORIAL MISCONDUCT TO FAIL TO INFORM THE
JURY OF THAT DEAL AND (2) CONSTITUTIONALLY
INEFFECTIVE ASSISTANCE OF COUNSEL TO FAIL TO
CROSS-EXAMINE THE WITNESS REGARDING THAT DEAL?

IV.

DEFENSE COUNSEL’S FAILURE TO PROPERLY
INVESTIGATE, FILE PROPER MOTIONS, MAKE PROPER
OBJ ECTIONS, AND A PROPER RECORD WAS
CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF
COUNSEL?

V.

WHETHER DEFENDANT WAS DENIED EFFECTIVE
ASSISTANCE OF APPELLATE COUNSEL [IN] HIS APPEAL OF
RIGHT?

VI.

WHETHER DEFENDANT IS ENTITLED TO RELIEF WHERE HE
IS “ACTUALLY INNOCENT” OF THE OFFENSES
UNDERLYING HIS STATE COURT CONVICTION, AND BUT
FOR CONSTITUTIONAL ERRORS IN THE TRIAL
MECHANISM, NO REASONABLE JUROR WOULD HAVE
VOTED TO CONVICT HIM BEYOND A REASONABLE
DOUBT?

VII.

DEFENDANT’S CONVICTION FOR [ARMED] ROBBERY []
AND ASSAULT W/I TO ROB WHILE ARMED MUST BE
VACATED ON DOUBLE JEOPARDY GROUNDS.

VIII.

DEFENDANT IS ENTITLED TO RELIEF WHERE HIS
MANDATORY LIFE-SENTENCE FOR FIRST DEGREE
MURDER IS [] AN UNCONSTITUTIONAL “DETERMINATE
SENTENCE” AND CONSTITUTES CRUEL OR UNUSUAL
PUNISHMENT.

IX.

DEFENDANT IS ENTITLED TO RELIEF WHERE THE CLERK
ADMINISTERED A DEFENDANT OATH TO THE JURORS AT
DEFENDANT’S TRIAL, WHICH CONSTITUTED CLEAR
ERROR AND REQUIRE[S] REVERSAL AND VACATION OF
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CONVICTIONS.
X.

WHETHER DEFENDANT[’S] CONVICTION WARRANTS
VACATION WHERE THE PROSECUTION CONSTRUCTIVELY
AMENDED THE INDICTMENT THROUGH HER ARGUMENTS
AND CASE IN CHIEF TO THE JURY AND WHICH DENIED THE
RIGHT TO NOTICE TO THE ADDED CHARGE WHICH
CHANGED FROM ROBBERY THEORY TO AN AMBUSH
THEORY.

XI.

WHETHER DEFENDANT WAS DENIED VI AMENDMENT
RIGHT TO EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

XII.

[WHETHER] DEFENDANT IS ENTITLED TO REVERSAL
WHERE THE TRIAL COURT GAVE [AN] INCOMPLETE JURY
INSTRUCTION ON HOW THE JURY SHOULD JUDGE
DEFENDANT’S STATEMENT AS EVIDENCE AGAINST HIM,
WHICH DENIED A FAIR TRIAL.

XIII.

DEFENDANT IS ENTITLED TO RELIEF FROM CONVICTION
OF HIS MURDER CONVICTION UNDER MCL 750.316, WHERE
THE MICHIGAN SUPREME COURT IN PEOPLE V. ARRON
CHANGED THE MEANING OF MURDER WHICH
REPRESENTS [AN] UNCONSTITUTIONAL INTRUSION INTO
A LEGISLATIVE FUNCTION AND VIOLATED DEFENDANT’S
RIGHT TO NOTICE UNDER THE 5TH AND 14TH
AMENDMENTS OF THE [U.S.] CONST. AND UNDER CONST.
1963 ART.1 § 20 WHERE THE STATUTE VIOLATES THE
TITLE-OBJECT-CLAUSE AND REPUGNANT TO MICH CONST.
1963, ART 4 §24.

(Pet., docket #1, Page ID##4, 6, 7, 9, 11-12, 14-19.) Petitioner states that he raised grounds I through
IV in his direct appeal. However, Petitioner notes that he raised grounds V through XIII only in the
Michigan Supreme Court. (See Attach. A to Pet., docket #1-1, Page ID#21.)
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
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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 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 acknowledges that he raised grounds V to XIII only in the Michigan
Supreme Court, and, thus, those claims are unexhausted. See Wagner, 581 F.3d at 414 (to fulfill the
exhaustion requirement, a petitioner must present his federal claims to both the state court of appeals
and the state 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). Petitioner has at least one available procedure by which to raise the unexhausted issues
he has presented in this application. He may file a motion for relief from judgment under MICH. CT.
R. 6.500 et. seq in the state court. 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 in the state
court. The Court therefore concludes that he has at least one available state-court remedy. In order
to properly exhaust his claim, Petitioner must file a motion for relief from judgment in the Kent
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County Circuit Court. If his 6.500 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; Wagner, 581 F.3d at 414.
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-andabeyance 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 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 § 2244(d)(1)(A), 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.” Petitioner appealed his conviction to the Michigan Court of Appeals and
the Michigan Supreme Court. The Michigan Supreme Court denied his application on November
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21, 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, February 20, 2012. Accordingly, absent tolling, Petitioner
would have one year, until February 20, 2013, in which to file his habeas petition.
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).1 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.

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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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 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.

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

Dated:

12/20/2012

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

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