United States District Court, Eastern District of Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING WITHOUT PREJUDICE THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING PETITIONER LEAVE TO APPEAL IN FORMA PAUPERIS
LINDA V. PARKER U.S. DISTRICT JUDGE
Petitioner James Traxler (“Petitioner”), confined at the Macomb Correctional Facility in New Haven, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is challenging his convictions in the Circuit Court for Newaygo County, Michigan for second-degree murder in violation of Michigan Compiled Laws Section 750.317, and felony-firearm in violation of Michigan Compiled Laws Section 750.227b. For the reasons that follow, the Court is summarily dismissing the petition without prejudice.
Petitioner was convicted of the above offenses in September 2012, following a jury trial. Petitioner filed an appeal of right with the Michigan Court of Appeals, claiming that the trial court erred in permitting expert testimony in the area of competency and mental illness where the testimony did not meet the requirements of Michigan Rule of Evidence 702 and that trial counsel was ineffective for failing to move for the exclusion of this testimony. The Michigan Court of Appeals affirmed Petitioner’s convictions. People v. Traxler, No. 314951, 2014 WL 2934293 (Mich. Ct. App. June 26, 2014).
Petitioner filed an application for leave to appeal to the Michigan Supreme Court. In addition to the claims raised before the Michigan Court of Appeals, Petitioner asserted for the first time that he was deprived of the right to present a defense and the effective assistance of counsel when Petitioner’s trial counsel failed to raise self-defense at trial. The Michigan Supreme Court granted Petitioner permission to add his self-defense claims to his application for leave to appeal, but then denied Petitioner leave to appeal on February 3, 2015. People v. Traxler, 858 N.W.2d 452 (Mich. 2015) (Table).
Petitioner seeks a writ of habeas corpus on the following grounds:
I. The trial court erred in allowing “expert” witness testimony in the area of competency and mental illness where the testimony did not meet the requirements of Michigan Rule of Evidence 702.
II. Defendant was denied his constitutional right to effective assistance of counsel and is thus entitled to a new trial because defense counsel failed to move to exclude expert testimony that did not meet the requirements of MRE 702, and had the testimony been excluded it is reasonably probable that the results of the trial would have been different.
III. Mr. Traxler was deprived of the right to present a defense and the effective assistance of counsel when trial defense counsel failed to raise the defense of self-defense.
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), (c); Picard v. Connor, 404 U.S. 270, 275-78 (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 contained in a habeas petition. Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009). Therefore, a federal habeas court must review each claim for exhaustion before any claim may be reviewed on the merits. Id. The court generally must dismiss a petition containing both exhausted and unexhausted claims. Pliler v. Ford, 542 U.S. 225, 230 (2004) (citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the State’s established appellate review process. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999). This means that state prisoners in Michigan must present their habeas claims to the Michigan Court of Appeals and the Michigan Supreme Court before they can raise them in a federal habeas corpus petition. See Sanders v. McKee, 276 F.Supp.2d 691, 693 (E.D. Mich. 2003).
A habeas petitioner has the burden of proving his exhaustion of available state court remedies. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The failure to exhaust those remedies may be raised sua sponte by the federal habeas court. Eakes v. Sexton, 592 F. App’x 422, 430-31 (6th Cir. 2014).
The present petition is subject to dismissal because it contains unexhausted claims. Petitioner specifically indicates that he first raised his third claim alleging that trial counsel was ineffective for failing to raise a self-defense claim only when seeking leave to appeal before the Michigan Supreme Court. “The general rule in the federal habeas context is that the submission of new claims to a state’s highest court on discretionary review does not constitute fair presentation of the claims to the state courts.” Skinner v. McLemore, 425 F. App’x 491, 494 (6th Cir. 2011) (citing Castille v. Peoples, 489 U.S. 346, 349 (1989)).
Although Petitioner raised an ineffective assistance of trial counsel claim on direct appeal involving counsel’s failure to object to the admission of expert testimony, this was different than the ineffective assistance of counsel claim he raised for the first time with the Michigan Supreme Court. A habeas petitioner is required to present to the state courts “ ‘the same specific claims of ineffective assistance [of counsel] made out in the habeas petition.’ ” Wyldes v. Hundley, 69 F.3d 247, 253 (8th Cir. 1995) (quoting Tippitt v. Lockhart, 903 F.2d 552, 554 (8th Cir. 1990)); see also Caver v. Straub, 349 F.3d 340, 346-47 (6th Cir. 2003) (quoting Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987) (“Fair presentation . . . requires that ‘the same claim under the same theory be presented’ for the state court’s consideration. . . . Thus, to the extent that an ineffective assistance of counsel claim is based upon a different allegedly ineffective action than the claim presented to the state courts, the claim has not been fairly presented to the state ...