United States District Court, Eastern District of Michigan, Southern Division
Michael J. Hluchaniuk, Mag. Judge
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
JUDITH E. LEVY, United States District Judge
Before the Court is Petitioner Alvin Franklin, Jr.’s pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Franklin is confined at the G. Robert Cotton Correctional Facility in Jackson, Michigan. He challenges his convictions for unarmed robbery and conspiracy to commit unarmed robbery. See Mich. Comp. Laws §§ 750.157a, 750.530. For the reasons that follow, the Court dismisses Franklin’s petition without prejudice.
Franklin was convicted following a jury trial in the Ingham County Circuit Court. He filed an appeal as of right with the Michigan Court of Appeals, raising a claim that he was denied his right to confront and cross-examine the prosecution’s chief witness. The Michigan Court of Appeals affirmed Franklin’s conviction. People v. Franklin, No. 314425, 2014 WL 1679148 (Mich. Ct. App. Apr. 24, 2014). Franklin then filed an application for leave to appeal to the Michigan Supreme Court. In addition to the claim raised before the Michigan Court of Appeals, Franklin raised, for the first time, claims that he was subjected to a suggestive pre-trial identification and that he was denied the effective assistance of trial counsel. The Michigan Supreme Court denied leave on October 28, 2014. People v. Franklin, 854 N.W.2d 882 (Mich. 2014) (Table).
Franklin seeks a writ of habeas corpus on the following grounds:
1. Defendant has a right to cross-e[x]amine, impeach the testimon[y] of the state[’]s chief witness, and to confront with prior bad acts that goes to the core of truth and veracity.
2. Pre-trial identification, illegal suggestive show-up that violates fundamental fair play.
3. Ineffective assistance of counsel, where counsel was ineffective and did not provide the minimal standards in assistance in this matter.
(Dkt. 1, Petition 5, 7, 8.)
Franklin’s petition for writ of habeas corpus must be dismissed because it includes two claims that were not properly exhausted in the state courts.
As a general rule, a state prisoner must exhaust his or her available state court remedies before seeking federal habeas relief. 28 U.S.C. § 2254(b)–(c). Picard v. Connor, 404 U.S. 270, 275 (1971). Although exhaustion is not a jurisdictional matter, “it is a threshold question that must be resolved” before a federal court can reach the merits of any claim in a habeas petition. Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009). A habeas petitioner bears the burden of proving exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). A federal court “is obligated to review the exhaustion issue sua sponte.” Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987). Federal courts must dismiss mixed habeas petitions – i.e., those including both exhausted and unexhausted claims. Pliler v. Ford, 542 U.S. 225, 230 (2004).
Franklin’s petition is subject to dismissal because he failed to allege or indicate in his petition that he has exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). Franklin admits that he raised his second and third claims only for the first time in his application for leave to appeal before the Michigan Supreme Court. (Petition 7, 9.) Raising a claim for the first time before the state courts on discretionary review does not amount to a “fair presentation” of the claim for exhaustion purposes. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Franklin failed to present his second and third claims on his direct appeal with the Michigan Court of Appeals; his ...