Rogers #211322 v. Tribley

Filing 20

OPINION and ORDER ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cmb)

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

MAX ROGERS,
Petitioner,
v.

Case No. 2:13-CV-146
HON. R. ALLAN EDGAR

LINDA TRIBLEY,
Respondent.
________________________________/
OPINION & ORDER
Petitioner filed this § 2254 petition for writ of habeas corpus challenging the
validity of his state court conviction for violations of his First, Fifth, Sixth, and Fourteenth
Amendment rights. PageID.15. On December 9, 2011, Petitioner pleaded guilty to one count of
receiving and concealing stolen property (MICH. COMP. LAWS § 750.535(3)(a)). PageID.15; ECF
No. 17 at 2. On January 9, 2012, Petitioner was sentenced to thirty to sixty months
imprisonment. PageID.24, 29. Petitioner remains in the custody of the Michigan Department of
Corrections (MDOC) as a parolee.
After his conviction, Petitioner filed an application for leave to appeal in the
Michigan Court of Appeals with appointed Counsel on March 29, 2012. ECF No. 17 at 26. The
Court of Appeals denied Petitioner’s application and affirmed his conviction on October 2, 2012.
ECF No. 17 at 1. Petitioner then filed an application for leave to appeal to the Michigan
Supreme Court, which was denied on April 1, 2013. ECF No. 18 at 1.
Petitioner did not file a motion for relief from judgment, nor did he appeal to the

United States Supreme Court. Instead, he filed a habeas petition before this Court on April 24,
2013. ECF No. 1. Petitioner maintains that his convictions were based on violations of his state
and federal rights. Petitioner sets forth the following claims for relief:
I. May a defendant be convicted of receiving and concealing stolen
property if the defendant is the same person who both stole the
property and received the stolen property?
II. Does a Michigan Circuit Court have territorial jurisdiction over a
criminal offense committed in the state of Indiana?
III. Did the trial court abuse its discretion by not articulating on the
record “substantial and compelling reasons” for departing upward in
defendant’s case where the courts only rationale for departing upward
was defendant’s prior criminal record regardless of the fact that
defendant’s sentencing guidelines involved a “straddle cell”?
PageID.16, 21 (noting Petitioner incorporated his brief from his direct appeal to the Michigan
Court of Appeals into this habeas petition). Respondent filed a response to Petitioner’s habeas
application on December 4, 2013. ECF No. 11. Petitioner did not file a reply. The matter is
now ready for a decision.
Petitioner argues that this Court should grant him relief due to violations of his
Constitutional rights. PageID.15. However, 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 by Duncan v.
Henry, 513 U.S. 364, 365 (1995) and Anderson v. Harless, 459 U.S. 4, 6 (1982)). To fulfill the

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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;
Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993); 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. Petitioner bears the burden of showing exhaustion. See
Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
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 M.C.R. 6.500 et. seq.
Under Michigan law, one such motion may be filed after August 1, 1995. M.C.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. Accordingly, the Court will dismiss Petitioner’s habeas corpus
application without prejudice.
This Court concludes that all of Petitioner’s claims are unexhausted. Should
Petitioner choose to appeal this action, the Court must determine whether a certificate of
appealability may 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). 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. 2001). Each issue must be considered
under the standards set forth in Slack v. McDaniel, 529 U.S. 473 (2000). Under Slack, to warrant
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a grant of the certificate, “[t]he petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at
484. The Court examined each of Petitioner’s claims under the Slack standard and concludes
that reasonable jurists could not find that a dismissal of each of Petitioner’s claims was debatable
or wrong. Therefore, this Court DENIES A CERTIFICATE OF APPEALABILITY as to
each issue raised by Petitioner.
For the same reasons the Court dismissed this action, the Court will certify that
any appeal by Petitioner from the Court’s decision and judgment would be frivolous and not
taken in good faith, pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24. Therefore, any
application by Petitioner for leave to proceed in forma pauperis on appeal is hereby
DISMISSED.
In summary, Petitioner’s habeas application (ECF No. 1) pursuant to 28 U.S.C. §
2254 is DISMISSED WITHOUT PREJUDICE. A judgment consistent with this Opinion and
Order will be entered.
SO ORDERED.

Dated: __3/8/2016___

_/s/ R. Allan Edgar_______________________
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE

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