United States District Court, Western District of Michigan, Southern Division
Honorable Janet T. Neff, J.
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 concludes that Petitioner has failed to exhaust his available state-court remedies as to all claims raised in the petition. Because Petitioner has fewer than 60 days remaining in the limitations period for filing a habeas petition, 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.
I. Factual allegations
Petitioner Alon Delmar Turner presently is incarcerated at the Michigan Reformatory. Petitioner pleaded guilty in the Wayne County Circuit Court to second-degree murder, Mich. Comp. Laws § 750.317, and possession of a firearm during the commission of a felony, Mich. Comp. Laws § 227b. On August 15, 2012, Petitioner was sentenced to respective prison terms of 22½ to 60 years and 2 years.
Petitioner filed a delayed application for leave to appeal his conviction to the Michigan Court of Appeals. In the brief filed by counsel, Petitioner raised one ground:
I. WAS [PETITIONER] DENIED HIS FIFTH AND FOURTEENTH AMENDMENT CONSTITUTIONAL RIGHTS OF DUE PROCESS WHEN THE TRIAL COURT DENIED HIS MOTION TO WITHDRAW HIS GUILTY PLEA BECAUSE THE PLEA WAS NOT VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY MADE?
(Def.-Appellant’s Br. on Appeal, docket #1-1, Page ID#22.) Petitioner drafted a supplemental brief on appeal, raising two issues:
I. [PETITIONER] DID NOT VOLUNTARILY AND KNOWINGLY PLEAD GUILTY, IN VIOLATION OF THE STATE AND FEDERAL DUE PROCESS CLAUSES, WHERE HE WAS MISADVISED BY HIS ATTORNEY THAT A WITNESS WAS NOT GOING TO TESTIFY ON HIS BEHALF.
II. [PETITIONER] WAS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE COUNSEL FAILED TO PROPERLY INFORM HIM THAT A WITNESS WAS GOING TO TESTIFY ON HIS BEHALF.
(Def.-Appellant’s Pro Per Br. on Appeal, docket #1-2, Page ID#38.) Petitioner dated his supplemental brief on July 18, 2013 and mailed it to his attorney. (Id. at 50.) However, Petitioner’s appellate attorney did not mail it to the court of appeals until July 30, 2013, and it was received by the court on August 1, 2013. (Mot. to File Supp. Br., docket #1-2, Page ID#35.) The court of appeals returned the supplemental brief to the attorney on August 5, 2013, because it was untimely. (See 8/5/13 Letter from Mich. Ct. App. (MCOA), docket #1-2, Page ID#33.) On August 5, 2013, the court of appeals denied leave to appeal for lack of merit in the grounds presented. (8/5/13 MCOA Ord., docket #1-3, Page ID#57.)
Petitioner sought leave to appeal to the Michigan Supreme Court, raising the ground presented by counsel in the Michigan Court of Appeals, together with the following ground:
I. [PETITIONERWAS] DENIED HIS CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF COUNSEL WHEN APPELLATE COUNSEL FAILED TO FILE DEFENDANT’S STANDARD-4 BRIEF IN A TIMELY MANNER AND THE COURT OF APPEALS DID NOT CONSIDER [PETITIONER]’S STANDARD-4 BRIEF IN THEIR DECISION TO DENY [PETITIONER]’S DELAYED APPLICATION FOR LEAVE TO APPEAL.
(Def.-Appellant’s Application to Mich. Sup. Ct., docket #1-4, Page ID#63.) The supreme court denied leave to appeal on December 23, 2013. (12/23/13 Mich. Sup. Ct. (MSC) Ord., docket #1-5, Page ID#76.) Petitioner did not ...