United States District Court, E.D. Michigan, Southern Division
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.
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.
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.
September 2, 2016, petitioner filed a petition for writ of
habeas corpus with this Court. 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
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.
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. §
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.
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 ...