United States District Court, W.D. Michigan, Northern Division
HOLMES BELL UNITED STATES DISTRICT JUDGE
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. On July 26, 2016, Magistrate Judge
Timothy Greeley issued a Report and Recommendation
(“R&R”) recommending that the petition be
dismissed because it is a “mixed petition”
containing both exhausted and unexhausted claims. See
Rose v. Lundy, 455 U.S. 509, 510 (1982). Petitioner did
not file an objection to the R&R. This matter is before
the Court on Respondent's motion to dismiss
Petitioner's application for failure to exhaust all
claims (ECF No. 8) and the R&R (ECF No. 10).
raises two claims in his § 2254 petition. First, he
claims that he is entitled to re-sentencing due to scoring
based upon inaccurate information, and that defense counsel
was ineffective for failing to challenge the scoring. Second,
he claims that he was overcharged due to his psychiatric
history, was not permitted to allocute, was not competent to
stand trial, and was erroneously scored as a habitual
offender. He also asserts that the sentencing court was
biased against him. (ECF No. 1; PageID.6-7) Petitioner has
not fully exhausted his second claim. The Court could have
granted Respondent's motion to dismiss when it was filed
on April 28, 2016. But by the time that the R&R was filed
on July 26, 2016, Petitioner had less than sixty days
remaining in the limitations period to exhaust this claim in
state court. Because of this, the Court will not dismiss the
action at this time.
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.
bears the burden of showing exhaustion. See Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner
asserts that he added the second issue as a new issue in his
application for leave to appeal in the Michigan Supreme
Court. (ECF No. 1; PageID.7-8.) Based on Petitioner's
application to the Michigan Supreme Court, it appears that he
did not raise this issue. (ECF No. 9-9, PageID.126.) Even if
he did, Petitioner did not raise it with the Michigan Court
of Appeals. (ECF No. 9-8, PageID.90-95.) Therefore, the issue
is not fully exhausted.
Petitioner has one claim that is exhausted and one claim that
is not, his petition is “mixed.” Under Rose
v. Lundy, 455 U.S. 509, 522 (1982), district courts are
directed to dismiss mixed petitions without prejudice in
order to allow petitioners to return to state court to
exhaust remedies. However, since the habeas statute was
amended to impose a one-year statute of limitations on habeas
claims, see 28 U.S.C. § 2244(d)(1), dismissal
without prejudice often effectively precludes future federal
habeas review. This is particularly true after the Supreme
Court ruled in Duncan v. Walker, 533 U.S. 167,
181-82 (2001), that the limitations period is not tolled
during the pendency of a federal habeas petition.
result, the Sixth Circuit adopted a stay-and-abeyance
procedure for mixed petitions. See Palmer v.
Carlton, 276 F.3d 777, 781 (6th Cir. 2002). In
Palmer, the Sixth Circuit held that when the
dismissal of a mixed petition could jeopardize the timeliness
of a subsequent petition, the district court should dismiss
only the unexhausted claims and stay further proceedings on
the remaining portion until the petitioner has exhausted his
claims in the state court. Id.; see also Griffin
v. Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002).
application is subject to the one-year statute of limitations
provided in 28 U.S.C. § 2244(d)(1). Under §
2244(d)(1)(A), the one-year limitation period runs from
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” Petitioner appealed his
conviction to the Michigan Court of Appeals and the Michigan
Supreme Court. The Michigan Supreme Court denied his
application on May 28, 2015. Petitioner did not petition for
certiorari to the United States Supreme Court, though the
ninety-day period in which he could have sought review in the
United States Supreme Court is counted under §
2244(d)(1)(A). See Bronaugh v. Ohio, 235 F.3d 280,
283 (6th Cir. 2000). The ninety-day period expired on August
26, 2015. Accordingly, Petitioner had one year, until August
26, 2016, in which to file a fully-exhausted habeas petition.
Palmer Court has indicated that thirty days is a
reasonable amount of time for a petitioner to file a motion
for post-conviction relief in state court, and another thirty
days is a reasonable amount of time for a petitioner to
return to federal court after he has exhausted his
state-court remedies. Palmer, 276 F.3d at 721.
See also Griffin, 308 F.3d at 653 (holding that
sixty days amounts to mandatory period of equitable tolling
case, the Magistrate Judge filed the R&R on July 26,
2016, which left Petitioner with less than sixty days
remaining before the statute of limitations expired.
Petitioner did not have the necessary thirty days to file a
motion for post-conviction relief or the additional thirty
days to return to this Court before the statute of
limitations expired. As a result, if the Court dismissed the
petition without prejudice for failure to exhaust, the
dismissal could jeopardize the timeliness of any subsequent
petition. Palmer, 276 F.3d at 781.
Supreme Court has held, however, that the type of
stay-and-abeyance procedure set forth in Palmer
should be available only in limited circumstances because
over-expansive use of the procedure would thwart the
AEDPA's goals of achieving finality and encouraging
petitioners to first exhaust all of their claims in the state
courts. See Rhines v. Weber, 544 U.S. 269, 277
(2005). In its discretion, a district court contemplating
stay and abeyance should stay the mixed petition pending
prompt exhaustion of state remedies if there is “good
cause” for the petitioner's failure to exhaust, if
the petitioner's unexhausted claims are not
“plainly meritless” and if there is no indication
that the petitioner engaged in “intentionally dilatory
litigation tactics.” Id. at 278. Moreover,
under Rhines, if the district court determines that
a stay is inappropriate, it must allow the petitioner the
opportunity to delete the unexhausted claims from his
petition, especially in circumstances in which dismissal of
the entire petition without prejudice would
“unreasonably impair the petitioner's right to
obtain federal relief.” Id.
if Petitioner wishes to pursue his unexhausted claim in the
state courts, he must show cause within 28 days why he is
entitled to a stay of these proceedings. Specifically,
Petitioner must show: (1) good cause for his failure to
exhaust before filing his habeas petition; (2) that his
unexhausted claims are not plainly meritless; and (3) that he
has not engaged in intentionally dilatory litigation tactics.
See Rhines, 544 U.S. at 277-78. If Petitioner fails
to meet the Rhines requirements for a stay or fails
to timely comply with the Court's order, the Court will
review only his exhausted claim.
order consistent with this ...