Henley #141431 v. Woods

Filing 15

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
RAYMOND HENLEY,
Petitioner,

Case No. 2:13-cv-309

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.
Petitioner has presented one unexhausted claim and still has a remaining state court remedy.
Because the limitations period for filing a habeas petition is expired, 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.
Petitioner Raymond Henley, filed this petition for writ of habeas corpus challenging
his no contest plea as fourth habitual offender to first degree criminal sexual conduct, assault with
intent to do great bodily harm less than murder, assault with a dangerous weapon and kidnaping.
Petitioner was convicted in the Wayne County Circuit Court. Petitioner was sentenced to terms of
imprisonment of 13 years and 11 months to 25 years on the criminal sexual conduct and kidnaping
convictions, 5 years to 10 years great bodily harm less than murder conviction, 2 years to 4 years on
the assault with a dangerous weapon conviction, and lifetime electronic monitoring.

Petitioner

asserts that he was not informed about the possibility of lifetime electronic monitoring until he was
sentenced by the court. Petitioner never requested to withdraw his plea even after he received his

sentence. The Michigan Court of Appeals affirmed Petitioner’s conviction on December 21, 2011.
On January 18, 2013, the Michigan Supreme Court denied Petitioner’s application for leave to appeal
stating:
By order of October 26, 2012, the prosecuting attorney was directed
to answer the application for leave to appeal the December 21, 2011
order of the Court of Appeals. On order of the Court, the answer
having been received, the application for leave to appeal is again
considered, and it is DENIED, because we are not persuaded that the
questions presented should be reviewed by this Court.
The Petitioner argues that:
I. The sentencing court did not provide Petitioner with an opportunity
to withdraw his plea, after the imposition at sentencing of the
additional penalty of lifetime electric monitoring and that the
complainant was forty years old and not less than thirteen years of
age.
II. Ineffective assistance of counsel for failing to inform Petitioner
about the direct consequences of his plea.
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
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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.
In this petition, Petitioner asserts that he received ineffective assistance of trial
counsel, because counsel failed to inform him of the direct consequences of his plea which included
lifetime electronic monitoring. Petitioner bears the burden of showing exhaustion. See Rust v. Zent,
17 F.3d 155, 160 (6th Cir. 1994). In the Michigan Court of Appeals Petitioner argued that the trial
court imposed a lifetime monitoring penalty without notice of that possibility at the time of
Petitioner’s plea, and that the trial court failed to offer Petitioner the option of withdrawing his plea
after sentencing him to lifetime electronic monitoring. PageID.218-225. The Petitioner did not raise
an ineffective assistance of trial counsel claim in the Michigan Court of Appeals, but first raised the
claim in his application for leave to appeal to the Michigan Supreme Court. The Michigan Supreme
Court denied application for leave to appeal without discussing the merits of this claim.
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. 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. In order to properly exhaust his claim, Petitioner must file a motion
for relief from judgment in the state court. If his motion is denied by the circuit court, Petitioner
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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 one exhausted claim and one that is 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-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 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 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
Michigan Supreme Court. The Michigan Supreme Court denied his application on January 18,
2013. Petitioner did not petition for certiorari to the United States Supreme Court, though the
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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 April 28, 2013. Accordingly, Petitioner had only one year, until April
28, 2014, in which to file his habeas petition. Accordingly, the time for filing a federal habeas
petition has expired and is not tolled while a federal habeas action is pending.
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
no time remaining for statute of limitations purposes. 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 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

1

The running of the statute of limitations is tolled while “a properly filed application for State postconviction 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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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 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:

4/26/2016

/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE

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