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Vinson v. Wynn

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

October 31, 2016

DANNY PAUL VINSON, Petitioner,
v.
THOMAS WYNN, Respondent.

          OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE AND DENYING A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.

         Danny Paul Vinson, (“petitioner”), confined at the Saginaw Correctional Facility in Freeland, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction for first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(f); armed robbery, Mich. Comp. Laws § 750.529; first-degree home invasion, Mich. Comp. Laws § 750.110a(2); assault with intent to do great bodily harm less than murder, Mich. Comp. Laws § 750.84; unlawful imprisonment, Mich. Comp. Laws § 750.349; felon in possession of a firearm, Mich. Comp. Laws § 750.224f; and possession of a firearm in the commission of a felony [felony-firearm], Mich. Comp. Laws § 750.227b. For the reasons stated below, the petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.

         I. FACTUAL BACKGROUND

         Petitioner was convicted in the Kalamazoo County Circuit Court. The Michigan Court of Appeals affirmed petitioner's conviction and sentence. People v. Vinson, No. 317778, 2015 WL 630296 (Mich. Ct. App. Feb. 12, 2015). Petitioner then filed an application for leave to appeal to the Michigan Supreme Court. In lieu of granting leave to appeal, the Michigan Supreme Court remanded the matter to the trial court for re-sentencing, based on that court's recent decision in People v. Lockridge, 498 Mich. 358; 870 N.W.2d 502 (Mich. 2015), in which the Michigan Supreme Court held that Michigan's Sentencing Guidelines scheme violates the Sixth Amendment right to a jury trial. There is no indication that petitioner has, as yet, been resentenced by the state trial court. Petitioner, however, has filed a post-conviction motion for relief from judgment, which remains pending in the Kalamazoo County Circuit Court.

         On September 2, 2016, petitioner filed a petition for writ of habeas corpus with this Court.[1] Petitioner seeks a writ of habeas corpus on the following grounds:

I. The tate violated M.R.E. 701 and M.R.E. 702, trial court abused its discretion by allowing testimony from lay witnesses and state withheld exculpatory information.
II. Ineffective Assistance of Appellate Counsel.
III. Ineffective Assistance of Counsel.
IV. Prosecutorial Misconduct for presenting perjured testimony.

         II. DISCUSSION

         The instant petition is subject to dismissal because two of petitioner's claims, by petitioner's own admission, have yet to be exhausted with the state courts.

         As a general rule, a state prisoner seeking federal habeas relief must first exhaust his or her available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b)-(c). See Picard v. Connor, 404 U.S. 270, 275-78 (1971). Federal district courts must dismiss mixed habeas petitions which contain both exhausted and unexhausted claims. See Pliler v. Ford, 542 U.S. 225, 230 (2004) (citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). A habeas petitioner has the burden of proving that he has exhausted his state court remedies. Sitto v. Bock, 207 F.Supp.2d 668, 675 (E.D. Mich. 2002). The failure to exhaust state court remedies may be raised sua sponte by a federal court. See Benoit v. Bock, 237 F.Supp.2d 804, 806 (E.D. Mich. 2003); 28 U.S.C. § 2254(b)(3).

         In the present case, the instant petition is subject to dismissal, because petitioner has failed to allege or indicate in his petition that he has exhausted his state court remedies with respect to all of his claims. See Peralta v. Leavitt, 56 F. App'x. 534, 535 (2nd Cir. 2003); see also Fast v. Wead, 509 F.Supp. 744, 746 (N.D. Ohio 1981).

         Petitioner admits on the face of his petition that he failed to raise his first two claims in his direct appeal. Petitioner is only raising these two claims now in his post-conviction motion for relief from judgment, currently pending in the Kalamazoo County Circuit Court. There is no indication that the state trial judge has ruled on that motion. A habeas petition should be denied on exhaustion grounds where a state appeal or post-conviction motion remains pending. See e.g. Juliano v. Cardwell, 432 F.2d 1051 (6th Cir. 1970). Moreover, should the state trial court rule adversely against petitioner, he would be required to appeal the denial of his post-conviction motion to the Michigan Court of Appeals and the Michigan Supreme Court in order to properly exhaust the claims that he is advancing in his post-conviction motion. Denial of a motion for relief from judgment is reviewable by the Michigan Court of Appeals and the Michigan Supreme Court upon the filing of an application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. See Wagner v. Smith,581 F.3d 410, 414 (6th Cir. 2009). Where a ...


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