United States District Court, Western District of Michigan, Northern Division
ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE
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.
I. Factual allegations
Petitioner is incarcerated in the Kinross Correctional Facility. He was convicted in the Gogebic County Circuit Court of first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b), first-degree home invasion, Mich. Comp. Laws § 750.110a(2), and arson of a dwelling, Mich. Comp. Laws § 750.72. The trial court sentenced him as a second habitual offender to imprisonment of 20 to 30 years for the home invasion and the arson convictions and to life imprisonment without parole for the felony-murder conviction. Petitioner appealed as of right, raising four claims of error. In an unpublished opinion issued on June 13, 2013, the Michigan Court of Appeals affirmed Petitioner’s convictions, but remanded his case for resentencing. On remand, the trial court resentenced Petitioner to imprisonment of 16 years and 8 months to 30 years for the home invasion and arson convictions, and life imprisonment without parole for the felony-murder conviction. The Michigan Supreme Court denied Petitioner’s application for leave to appeal on November 25, 2013.
On October 16, 2014, Petitioner filed a motion for relief from judgment in the G0gebic County Circuit Court raising five new grounds for relief. The court denied his motion on October 29, 2014. Petitioner subsequently filed a delayed application for leave to appeal in the Michigan Court of Appeals on February 19, 2015, which remains pending. Petitioner brings a motion to stay this case (docket #4) until the proceedings on his motion for relief from judgment have concluded in the state courts.
In his application for habeas corpus relief, Petitioner appears to raise the following three claims from his direct appeal:
I. The trial court’s improper introduction of other acts propensity evidence denied Petitioner a fair trial where, had that evidence of the other act from November 16, 2009 not been admitted at trial, the outcome would have been different.
II. Petitioner was denied his state and federal constitutional right to due process where he was shackled during trial over defense counsel’s objection.
III. Petitioner’s conviction was against the great weight of the evidence and was insufficient to establish proof of the crime beyond a reasonable doubt.
Petitioner also seeks to raise additional claims presented in his motion for relief from judgment.
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; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); 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 has satisfied his burden with regard to the three claims raised in his direct appeal. However, as the claims presented in Petitioner’s motion for relief from judgment remain pending in the Michigan Court of Appeals, they are not fully exhausted. If Petitioner is denied relief in the ...