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Fordham v. McKee

United States District Court, E.D. Michigan, Southern Division

May 28, 2015

RONALD K. FORDHAM, #369373, Petitioner,
v.
KENNETH McKEE, Respondent.

OPINION AND ORDER (1) GRANTING RESPONDENT'S MOTION TO DISMISS (Dkt. 5); (2) DENYING PETITIONER'S REQUEST TO HOLD THE HABEAS PETITION IN ABEYANCE (Dkt. 7); (3) DISMISSING THE HABEAS PETITION (Dkt. 1) WITHOUT PREJUDICE; (4) DENYING A CERTIFICATE OF APPEALABILITY; AND (5) DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

MARK A. GOLDSMITH, District Judge.

I. INTRODUCTION

Petitioner Ronald Fordham, currently confined at the Bellamy Creek Correctional Facility in Ionia, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. 1), challenging his Wayne County conviction for second-degree murder, Mich. Comp. Laws § 750.317. Petitioner was sentenced to 27-to-50 years' imprisonment in September 2012. In his pleadings, Petitioner raises claims concerning the sufficiency of the evidence, the conduct of the prosecutor, the jury instructions, and the effectiveness of trial counsel (multiple issues).

The matter is before the Court on Respondent's motion to dismiss the petition on exhaustion grounds (Dkt. 5), as well as Petitioner's request to hold his habeas petition in abeyance so that he may return to state court to fully exhaust all of his claims (Dkt. 7). For the reasons explained fully below, the Court grants Respondent's motion to dismiss the habeas petition, denies Petitioner's request to hold the habeas petition in abeyance, and dismisses the habeas petition without prejudice. The Court also declines to issue a certificate of appealability, and denies leave to appeal in forma pauperis.

II. BACKGROUND

Following his conviction and sentencing, Petitioner filed a delayed application for leave to appeal with the Michigan Court of Appeals, raising claims concerning the sufficiency of the evidence and the effectiveness of counsel for failing to object to prosecutorial vouching. The Michigan Court of Appeals denied leave to appeal "for lack of merit in the grounds presented." People v. Fordham, No. 317522, Order at 1 (cm/ecf page) (Mich. Ct. App. Jan. 21, 2014) (unpublished) (Dkt. 6-10). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court, raising the prior two claims, as well as claims concerning the conduct of the prosecutor, the jury instructions, and the effectiveness of trial counsel (multiple issues). The Michigan Supreme Court denied leave to appeal in a standard order. People v. Fordham, 849 N.W.2d 355 (Mich. July 29, 2014) (Dkt. 6-11).

Petitioner dated his federal habeas petition on September 17, 2014. See Pet. at 4, 55 (cm/ecf pages) (Dkt. 1). In the petition, Petitioner raises the claims presented to the Michigan Supreme Court on direct appeal. On March 30, 2015, Respondent filed the instant motion to dismiss the petition on exhaustion grounds (Dkt. 5). Petitioner filed a response on May 4, 2015 (Dkt. 7). Petitioner states that he attempted to exhaust his state court remedies by raising his issues before the Michigan Supreme Court and, alternatively, seeks to hold his habeas petition in abeyance so that he may return to the state courts to properly exhaust any unexhausted issues.

III. STANDARD OF DECISION

A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254 must first exhaust all state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (concluding "that state 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"); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994) ("[T]he state prisoner must first exhaust his available state court remedies by presenting his claims to the state courts to provide the courts an opportunity to remedy any constitutional infirmities in his conviction. It is the petitioner's burden to prove exhaustion."). To satisfy this requirement, the claims must be "fairly presented" to the state courts, meaning that the prisoner must have asserted both the factual and legal bases for the claims in the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The claims must also be presented to the state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). A Michigan prisoner must properly present each issue he seeks to raise in a federal habeas proceeding to both the Michigan Court of Appeals and the Michigan Supreme Court to satisfy the exhaustion requirement. Welch v. Burke, 49 F.Supp.2d 992, 998 (E.D. Mich. 1999); accord Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). While the exhaustion requirement is not jurisdictional, a "strong presumption" exists that a petitioner must exhaust all available state remedies before seeking federal habeas review. Granberry v. Greer, 481 U.S. 129, 131, 134-135 (1987). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.

IV. ANALYSIS

A. Exhaustion of Claims

The record before the Court indicates that Petitioner first presented his prosecutorial misconduct claim, his jury instruction claim, and all but one of his ineffective assistance of counsel claims to the state courts on discretionary review before the Michigan Supreme Court. Such an action is insufficient to satisfy the exhaustion requirement. Presenting new issues for the first time before a state supreme court on discretionary review does not amount to a "fair presentation" of those claims to the state courts for exhaustion purposes. Castille v. Peoples, 489 U.S. 346, 351 (1989). Thus, Petitioner fails to show that he properly exhausted all of his habeas claims in the state courts before seeking review in federal court.

Petitioner has an available avenue for review in the state courts such that his pursuit of state court remedies would not be futile. For example, he may file a motion for relief from judgment with the state trial court under Mich. Ct. Rule 6.500 et seq., and seek further review in the state appellate courts as necessary. The unexhausted claims should be addressed to, and considered by, the state courts ...


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