United States District Court, W.D. Michigan
T.Neff, United States District Judge.
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
Richard Leroy Tighe, Jr. presently is incarcerated at the G.
Robert Cotton Correctional Facility. Pursuant to a plea
agreement, Petitioner pleaded guilty in the Cass County
Circuit Court to one count of assault with intent to commit
sexual penetration, Mich. Comp. Laws § 750.520g(1). On
January 24, 2014, the circuit court sentenced Petitioner to a
prison term of four to ten years, together with a fine of
$500.00 and court costs of $500.00.
filed an application for leave to appeal to the Michigan
Court of Appeals, arguing that Mich. Comp. Laws §
750.520g(1) does not allow the imposition of fines or costs.
On October 20, 2014, the court of appeals denied leave to
appeal for lack of merit in the grounds
sought leave to appeal to the Michigan Supreme Court on
October 14, 2015, arguing that the failure to disclose the
fine and court costs rendered his guilty plea involuntary. On
May 13, 2015, while his application for leave to appeal was
pending, Petitioner filed a motion for relief from judgment
in the trial court, raising the following issues: (1) his
plea was involuntary because of his mental illness, memory
issues, and the effects of his psychoactive medications; (2)
his attorney rendered ineffective assistance of counsel by
failing to inquire into the effects of the two psychiatric
medications and failing to seek a competency hearing; and (3)
the court violated due process by not conducting a competency
evaluation, which would have shown Petitioner to be
incompetent to enter the plea. The motion for relief from
judgment was denied on May 15, 2015. Nearly simultaneously,
on May 14, 2015, Petitioner filed a motion in the supreme
court to amend his application for leave to appeal,
apparently attempting to raise the same issues presented in
the motion for relief from judgment. The supreme court issued
an on July 26, 2016, denying Petitioner's motion to amend
to add the new issues, but remanding the case to the trial
court to reconsider Petitioner's issue regarding the
assessment of court costs.
August 9, 2016, Petitioner filed a second motion for relief
from judgment in the Cass County Circuit Court, apparently
raising the same issues. On August 25, 2016, the trial court
held that the second motion for relief from judgment was both
procedurally improper and meritless. In the same order, in
response to the supreme court's order to remand, the
court reconsidered and upheld the imposition of court costs.
filed the instant petition on or about September 12, 2016. In
his petition, Petitioner raises four grounds: (1) his right
to due process was violated when he was not given an
opportunity to withdraw the plea, because the trial court did
not advise Petitioner of the possibility that a fine and
costs could be imposed, rendering his plea involuntary; (2)
his plea was void because the trial court failed to hold a
competency hearing; (3) trial counsel was ineffective in
failing to investigate Petitioner's mental health and the
effects of Petitioner's psychoactive medications and in
failing to seek a competency evaluation; and (4) ineffective
assistance of appellate counsel in failing to raise the other
claims and failing to advise Plaintiff of his right to file a
Standard 4 brief on appeal.
Exhaustion of State Court Remedies
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
bears the burden of showing exhaustion. See Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994). According to the
petition, Petitioner may have exhausted his first ground for
relief, depending on whether he actually raised the due
process claim in his application for leave to appeal to the
Michigan Court of Appeals. However, the remaining issues were
not properly presented to all levels of the Michigan courts,
as they were presented for the first time in his motion to
amend his application for leave to appeal to the Michigan
Supreme Court, which was denied. Presentation of an issue for
the first time on discretionary review to the state supreme
court does not fulfill the requirement of "fair
presentation." Castille v. Peoples, 489 U.S.
346, 351 (1989). Applying Castille, the Sixth
Circuit repeatedly has recognized that a habeas petitioner
does not comply with the exhaustion requirement when he fails
to raise a claim in the state court of appeals, but raises it
for the first time on discretionary appeal to the state's
highest court. See Skinner v. McLemore, 425
F.App'x 491, 494 (6th Cir. 2011); Thompson v.
Bell, 580 F.3d 423, 438 (6th Cir. 2009); Warlick v.
Romanowski, 367 F.App'x 634, 643 (6th Cir. 2010).
Moreover, where, as here, the supreme court has denied the
motion to amend the application for leave to appeal to
include new issues, the court has expressly determined that
the issues were not considered.
applicant has not exhausted available state remedies if he
has the right under state law to raise, by any available
procedure, the question presented. 28 U.S.C. § 2254(c).
Petitioner has at least one available procedure by which to
raise the issues he has presented in this application. He
already has filed his one motion for relief from judgment
under MICH. Ct. R. 6.502(G)(1). He has not, however, appealed
the trial court's May 15, 2016 order denying
Petitioner's first motion for relief from judgment.
See Mich. Ct. R. 6.509(A) (providing that appeal to
the Michigan Court of Appeals is by application under Mich.
Ct. R. 7.205 and must be filed within six months from the
decision being appealed under Mich. Ct. R.
7.205(G)(3)). In order to properly exhaust his claim,
Petitioner must appeal the denial of his motion for relief
from judgment to both the Michigan Court of Appeals and the
Michigan Supreme Court. See Duncan, 513 U.S. at
Petitioner has some claims that are exhausted and some that
are 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. As a
result, the Sixth Circuit adopted a stay-and-abeyance
procedure to be applied to mixed petitions. SeePalmer 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 ...