The opinion of the court was delivered by: Honorable Paul D. Borman United States District Court
OPINION AND ORDER (1) SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS, AND DENYING (2) A CERTIFICATE OF APPEALABILITY, AND (3) LEAVE TO APPEAL IN FORMA PAUPERIS
Robert Lee Childress, Jr., ("Petitioner"), presently confined at the Ryan Correctional Facility in Detroit, Michigan, has filed apetition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction for larceny by conversion, M.C.L.A. 750.362(2)(a); false pretenses, M.C.L.A. 750.218; and intent to pass false title, M.C.L.A. 257.254. For the reasons stated below, the petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.
Petitioner was convicted of the above offenses after a jury trial in the Oakland County Circuit Court. On October 14, 2008, petitioner was sentenced to four and a half to thirty years in prison. Petitioner claims that he has not appealed from the judgment of conviction.*fn1 This Court has reviewed the Michigan Court of Appeals' internet website and it appears that petitioner has filed an appeal from his conviction which remains pending before that Court.*fn2 Petitioner did file an action for a state writ of habeas corpus with the Wayne County Circuit Court, which was denied.
Petitioner now seeks federal habeas relief from his conviction.
The instant petition is subject to dismissal because none of petitioner's claims have been properly exhausted with the state courts.
As a general rule, a state prisoner seeking federal habeas relief must first exhaust his available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and (c). See Picard v. Connor, 404 U. S. 270, 275-78 (1971). The Antiterrorism and Effective Death Penalty Act (AEDPA) preserves the traditional exhaustion requirement, which mandates dismissal of a habeas petition containing claims that a petitioner has a right to raise in the state courts but has failed to do so. See Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999). A prisoner confined pursuant to a Michigan conviction must raise each habeas issue in both the Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal habeas corpus relief. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002). A habeas petitioner has the burden of proving that he or she has exhausted his or her state court remedies. Sitto v. Bock, 207 F. Supp. 2d 668, 675 (E.D. Mich. 2002). The failure to exhaust state court remedies may be raised sua sponte by a federal court. See Benoit v. Bock, 237 F. Supp. 2d 804, 806 (E.D. Mich. 2003); 28 U.S.C. § 2254(b)(3).
Federal habeas corpus relief is unavailable to a state prisoner who fails to allege that he or she has exhausted his or her available state court remedies. See Granville v. Hunt, 411 F. 2d 9, 11 (5th Cir. 1969). In the present case, the instant petition is subject to dismissal, because petitioner has failed to allege or indicate in his petition that he has exhausted his state court remedies. See Peralta v. Leavitt, 56 Fed. Appx. 534, 535 (2nd Cir. 2003); See also Fast v. Wead, 509 F. Supp. 744, 746 (N.D. Ohio 1981). Indeed, it appears that petitioner's appeal remains pending in the Michigan Court of Appeals. A habeas petition should be denied on exhaustion grounds where a state appeal or post-conviction motion remains pending. See e.g. Juliano v. Cardwell, 432 F. 2d 1051 (6th Cir. 1970). Moreover, if petitioner were to receive an adverse decision from the Michigan Court of Appeals, he would be required to seek leave to appeal from the Michigan Supreme Court in order to satisfy the exhaustion requirement. In order to exhaust a claim for federal habeas review, a petitioner must present each ground to both state appellate courts, even where the state's highest court provides only discretionary review. See O'Sullivan v. Boerckel, 526 U.S. 838, 845-47 (1999)). Petitioner has not presented his claims to the Michigan Court of Appeals or to the Michigan Supreme Court. Therefore, he has not exhausted his state court remedies. See Geeter v. Bouchard, 293 F. Supp. 2d 773, 775 (E.D. Mich. 2003).
Moreover, the mere fact that petitioner challenged his conviction by filing a state habeas action in the Wayne County Circuit Court would not satisfy the exhaustion requirement.
M.C.L.A. 600.4310(3) states that an action for writ of habeas corpus may not be brought by or on behalf of persons convicted, or in execution, upon legal process, civil or criminal. This statutory prohibition is consistent with the rule under Michigan law that habeas corpus cannot serve as a substitute for an appeal and cannot be used to review the merits of a criminal conviction. Cross v. Department of Corrections, 103 Mich. App. 409, 414-415; 303 N. W. 2d 218 (1981)(citing People v. Price, 23 Mich. App. 663, 669; 179 N.W. 2d 177 (1970)). A writ of habeas corpus in Michigan deals only with radical defects which render a judgment or proceeding absolutely void. Triplett v. Deputy Warden, 142 Mich. App. 774, 780; 371 N. W. 2d 862 (1985)(citing to In Re Stone, 295 Mich. 207; 294 N.W. 156 (1940)). A judgment which is merely erroneous, rather than void, is subject to [appellate] review and may not be collaterally attacked in a habeas proceeding. Id. This policy of limiting habeas proceedings in Michigan is "premised on the concern that such an action may be abused and substituted for normal appellate proceedings." Walls v. Director of Institutional Services Maxie Boy's Training School, 84 Mich. App. 355, 357; 269 N. W. 2d 599 (1978). Because M.C.L.A. 600.4310(3) does not permit the use of a state habeas action to challenge the legality of a conviction, petitioner did not satisfy the exhaustion requirement by challenging his conviction in such an action. See Nabors v. Warden, U.S. Penitentiary at Lewisburg, Pa., 848 F.2d 192 (Table), 1988 WL 50635, * 1 (6th Cir. May 23, 1988); See also McPharlin v. Woods, No. 2008 WL 4534234, * 1 (E.D. Mich. October 6, 2008).
Petitioner has failed to exhaust his state court remedies and still has an available state court remedy with which to do so. Although a district court has the discretion to stay a mixed habeas petition containing both exhausted and unexhausted claims to allow the petitioner to present his unexhausted claims to the state court in the first instance, See Rhines v. Weber, 544 U.S. 269 (2005), in this case, a stay of petitioner's application for a writ of habeas corpus would be inappropriate, because all of petitioner's claims are unexhausted and thus, the Court lacks jurisdiction over the petition while the petitioner pursues his claims in state court. See Bailey v. Roe, 135 Fed. Appx. 100, 101 (9th Cir. 2005); Hust v. Costello, 329 F. Supp. 2d 377, 380 (E.D.N.Y. 2004); See also See also Meyer v. Warren, 2006 WL 2644991, * 3 (E.D. Mich. September 14, 2006).
In addition, the present habeas petition was filed with this Court before petitioner's conviction became final with the state courts pursuant to 28 U.S.C. § 2244(d)(1)(A). Because the one year limitations period has yet to begin running in this case, petitioner would not be prejudiced if his habeas petition was dismissed without prejudice during the pendency of his state court appeal. Thus, a stay of the proceedings is not necessary or appropriate to preserve the federal forum for petitioner's claims. See Schroeder v. Renico, 156 F. Supp. 2d 838, 845-46 (E.D. Mich. 2001). The Court will dismiss the petition for writ of habeas corpus without prejudice.
The Court will also deny a certificate of appealability. In order to obtain a certificate of appealability, a prisoner must make a substantial showing ...