United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, DENYING CERTIFICATE
OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED ON APPEAL
IN FORMA PAUPERIS
CARAM STEEH, UNITED STATES DISTRICT JUDGE
James Coleman, has filed an “Application to Hold
Federal Habeas Petition in Abeyance Pending Exhaustion of
Potentially Dispositive Issues in State Court, ” which
the Court will construe as a petition for a writ of habeas
corpus under 28 U.S.C. § 2254. The petition challenges
Coleman's Oakland Circuit Court convictions of
transporting a prostitute, Mich. Comp. Laws § 750.429,
as well as other felony offenses. He was sentenced to 176
months to 40 years imprisonment.
to the allegations in the petition, and as confirmed by the
Michigan One Court of Justice website, Petitioner's
direct appeal of his state conviction ended when his
application for leave to appeal was denied by the Michigan
Supreme Court on June 28, 2016. People v. Coleman,
No. 153139 (Mich. Sup. Ct. June 28, 2016). Petitioner
asserts that on October 10, 2016, he filed a motion for
relief from judgment in the trial court raising the claims he
wishes to present in his habeas petition. Petitioner claims:
1) the trial court improperly scored the sentencing
guidelines by considering a prior invalid conviction, 2)
Petitioner was denied the effective assistance of trial
counsel, and 3) Petitioner was denied the effective
assistance of appellate counsel.
pleading requests the Court to stay this case and hold it in
abeyance while he completes review of these three claims in
the state courts.
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.
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). Here,
Petitioner admits that he is currently in the process of
exhausting his claims in the state courts in a state
post-conviction review proceeding under Michigan Court Rule
6.501 et seq.
district court can and must raise the exhaustion issue on its
own 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
Rose v. Lundy, 455 U.S. 509, 522 (1982), district
courts are directed to dismiss petitions containing
unexhausted claims 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.
Petitioner's 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
limitations 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 completed direct review of his conviction when the
Michigan Supreme Court denied his application for leave to
appeal on June 28, 2016. The one-year statute of limitations
began to run under §2244(d)(1)(A) when the ninety-day
period for seeking certiorari in the United States Supreme
Court expired. See Lawrence v. Florida, 549 U.S.
327, 332-33 (2007); Bronaugh v. Ohio, 235 F.3d 280,
283 (6th Cir. 2000). The statute of limitations for filing
this case therefore began to run on or about September 26,
2016. Petitioner states that he filed his motion for relief
from judgment in the trial court on October 10, 2016, a mere
two weeks after the statute of limitations began running.
Under §2244(d)(2), Petitioner's properly filed state
post-conviction review proceeding acts to toll the
limitations period. Therefore, Petitioner is not in danger of
running afoul of the statute of limitations, and there is no
basis for staying this case rather than dismissing it without
prejudice. See Rhines v. Weber, 544 U.S. 269, 278
(2005) (stay of habeas case requires showing of “good
the Court will summarily dismiss the petition without
prejudice. Once Petitioner completes state post-conviction
review he will have ample time-nearly a year-to properly file
a new petition.
Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability
(“COA”) is issued under 28 U.S.C. § 2253.
Rule 11 of the Rules Governing Section 2254 Proceedings now
requires a district court to “issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant.” A COA may be issued
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
case, the Court concludes that reasonable jurists would not
debate the Court's conclusion that the petition should be
summarily dismissed without prejudice. Therefore, the Court
denies a certificate of appealability. The Court will also
deny permission to appeal in forma pauperis because any
appeal of this ...