The opinion of the court was delivered by: Honorable Paul L. Maloney
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 Karlos Latwain Harris presently is incarcerated at the Pine River Correctional Facility. He currently is serving a variety of sentences for five convictions between February 15, 2000 and April 28, 2009. In his amended petition, he challenges his most recent conviction and sentence, imposed by the Washtenaw County Circuit Court on April 28, 2009, after Petitioner pleaded guilty as a fourth felony offender, MICH. COMP. LAWS § 769.12, to breaking and entering a building with intent to commit a felony, MICH. COMP. LAWS § 750.110. Petitioner's term of sentence on the offense is one year and seven months to ten years.
Petitioner purports to raise fourteen grounds that he believes would entitle him to habeas relief: (1) lack of jurisdiction; (2) lack of in rem jurisdiction; (3) lack of subject matter jurisdiction; (4) denial of substantive due process; (5) denial of equal protection; (6) deprivation of liberty interest in immunity; (7) deprivation of liberty interest in enforcing a foreign trust; (8) deprivation of liberty interest in not being enslaved; (9) deprivation of liberty interest in being free from cruel and inhuman treatment; (10) deprivation of liberty interest in exercising the powers reserved by human beings; (11) deprivation of security interest in trust collateral; (12) abuse of discretion; (13) denial of a fair trial; and (14) breach of trust.
According to his habeas application, Petitioner has not yet appealed his conviction to either the Michigan Court of Appeals or the Michigan Supreme Court.
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 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; 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. 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 has not filed an appeal of his conviction in either the court of appeals or 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 more than one available procedure by which to raise the issues he has presented in this application. First, he may file an application for leave to appeal his conviction and sentence in the Michigan Court of Appeals until one year from the date of his judgment of conviction, or until April 28, 2010. Thereafter, he may seek leave to appeal in the Michigan Supreme Court. Second, after his appeal or the expiration of his time to seek leave to appeal, he may file a motion for relief from judgment in the Washtenaw County Circuit Court under MICH. CT. R. 6.500 et seq., and he may seek leave to appeal the circuit court's determination in both the court of appeals and supreme court. Therefore, the Court concludes that he has more than one available state remedy.
Before dismissing an unexhausted petition, the Court considers whether a dismissal without prejudice could potentially result in a future habeas challenge being barred by the statute of limitations provided in 28 U.S.C. § 2244(d)(1). See Rhines v. Weber, 544 U.S. 269, 277 (2007) (approving stay-and-abeyance procedure in cases where dismissal could jeopardize a subsequent timely habeas filing); Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). 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 has not yet sought leave to appeal his conviction to the court of appeals, but the time for filing a delayed application for leave to appeal has not yet expired. His statute of limitations therefore has not yet begun to run. See 28 U.S.C. § 2244(d)(1)(A) (time for filing a petition pursuant to § 2254 runs from "the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review."). As a result, even if Petitioner fails to seek leave to appeal his conviction, the earliest date his period of limitations could begin to run is April 28, 2010, the day his time for seeking appellate review expires. Accordingly, the earliest his statute of limitations could expire is April 28, 2011. Petitioner therefore is in no danger of running afoul of the statute of limitations, as long as he diligently pursues his available state-court remedies.
In sum, because Petitioner has failed to exhaust his state-court remedies, this action will be ...