Bailey #725414 v. Woods
OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
QUANTAE DERRILL BAILEY,
Case No. 2:14-cv-36
Honorable Gordon J. Quist
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.
Petitioner presently is incarcerated at the Chippewa Correctional Facility. Following
a jury trial in the Muskegon County Circuit Court, Petitioner was convicted of armed robbery, MICH .
COMP . LAWS § 750.529, and possession of a firearm during the commission of a felony (felonyfirearm), MICH . COMP . LAWS § 750.227b. On May 31, 2011, the trial court sentenced him as a
second habitual offender to imprisonment of twenty-three to forty years for the armed-robbery
conviction and two consecutive years for the felony-firearm conviction. The Michigan Court of
Appeals affirmed Petitioner’s convictions in an unpublished opinion issued on September 13, 2012.
The Michigan Supreme Court subsequently denied Petitioner’s application for leave to appeal on
January 25, 2013.
On February 1, 2014, Petitioner filed a motion for relief from judgment in the
Muskegon County Circuit Court. Petitioner’s motion remains pending in the circuit court. (See Pet.,
docket #1, Page ID#3.)
In his application for habeas corpus relief, Petitioner raises the following two grounds
PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT DENIED
[PETITIONER] HIS DUE PROCESS RIGHT TO A FAIR TRIAL.
DEFENSE TRIAL COUNSEL WAS CONSTITUTIONALLY
INEFFECTIVE IN VIOLATION OF THE SIXTH AMENDMENT BY
FAILING TO OBJECT TO THE INSTANCES OF PROSECUTORIAL
MISCONDUCT IN CLOSING ARGUMENT.
(Pet., docket #1, Page ID#6.) Petitioner raised both habeas grounds on direct appeal. In his motion
for relief from judgment, Petitioner raises three new issues, which the Court assumes that he intends
to raise as additional grounds for habeas corpus relief. (See Pet., docket #1, Page ID#9.)
On February 3, 2014, Petitioner filed a motion to stay the proceedings (docket #2).
In his motion, Petitioner seeks a stay of these proceedings to file an appeal in the Michigan appellate
courts if his motion for relief from judgment is denied in the trial court. (Mot. to Stay, docket #2,
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
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). As previously discussed, Petitioner has exhausted his first two claims on direct
appeal but the remaining three claims in his motion for relief from judgment have not yet been
presented to all levels of the state courts. An applicant has not exhausted available state-court
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. Petitioner has filed a motion for relief from judgment
under MICH . CT . R. 6.500 et seq., but the trial court has not yet reached a decision on the motion.
If the trial court denies Petitioner’s motion, Petitioner must appeal that decision to the Michigan
Court of Appeals and the Michigan Supreme Court to exhaust his available state-court remedies.
See Duncan, 513 U.S. at 365-66. Accordingly, the Court concludes that Petitioner has at least one
available state-court remedy.
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, 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 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 January 25,
2013. 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 Thursday, April 25, 2013. Accordingly, absent tolling, Petitioner
would have one year, until April 25, 2014, in which to file his habeas petition.
A properly filed application for state post-conviction review or other state collateral
review tolls the statute of limitations during the period the application is pending. See 28 U.S.C.
§ 2244(d)(2). The statute of limitations is tolled from the filing of an application for state
post-conviction or other collateral relief until a decision is issued by the state supreme court.
Lawrence v. Florida, 549 U.S. 327 (2007). The statute is not tolled during the time that a Petitioner
petitions for writ of certiorari in the United Stated Supreme Court. Id. at 332. In the instant case,
the statute of limitations was tolled when Petitioner filed his motion for relief from judgment on
February 1, 2014. At that time, Petitioner had 83 days remaining in the limitations period. If the
trial court denies Petitioner’s motion, Petitioner must appeal that decision to the Michigan Court of
Appeals and the Michigan Supreme Court to exhaust his available state-court remedies. The statute
will remain tolled until the Michigan Supreme Court denies Petitioner’s application for leave to
appeal. See Carey v. Saffold, 536 U.S. 214, 219-20 (2002) (an application for post-conviction relief
remains pending until the application has achieved final resolution through the state’s
post-conviction procedures). Thereafter, Petitioner will have 83 days to file his application for
habeas corpus relief.
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 already filed a
motion for relief from judgment in the trial court and he has more than thirty days remaining in his
limitations period to return to federal court after he has exhausted his state-court remedies.
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.
For the foregoing reasons, the Court will dismiss the petition for failure to exhaust
available state-court remedies. The Court will also deny Petitioner’s motion (docket #2) for a stay
of the proceedings.
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
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).
“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.
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,  that jurists of
reason would find it debatable whether the petition states a valid claim of the denial of a
constitutional right and  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
A Judgment and Order consistent with this Opinion will be entered.
Dated: May 8, 2014
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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