United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT
OF HABEAS CORPUS  WITHOUT PREJUDICE, DENYING A CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
E. LEVY United States District Judge.
Chanton Blackshire filed this pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. He
was convicted after a jury trial in the Wayne Circuit Court
of unlawfully taking possession of and driving away a motor
vehicle, Mich. Comp. Laws ' 750.413, and was sentenced as
a fourth-time habitual felony offender to a term of forty-six
months to ten years' imprisonment.
raises five claims: (1) Petitioner was convicted of an
offense that he was not charged with and for which he was
given no notice; (2) the felony complaint was not signed or
sworn; (3) Petitioner's trial attorney was ineffective
for failing to meet with him prior to trial; (4) the trial
court committed misconduct, in part, by adding a charge of
unlawful driving away of a vehicle after insufficient
evidence of carjacking was presented at trial; and (5) the
prosecutor committed misconduct. (Dkt. 1 at 1-20.) Because
Petitioner's conviction is still being reviewed in the
state courts, the petition is dismissed without prejudice.
was originally charged with carjacking. Mich. Comp. Laws
§ 750. 529a. Following closing arguments, the trial
court asked defense counsel whether her position was that
Petitioner was guilty of, at best, unlawful driving away of
an automobile. (Dkt. 12-12 at 19.) Defense counsel responded
that she did make that argument based upon the testimony of
the police officers. (Id.) The prosecutor then
stated that he would request a jury instruction on the lesser
offense, and defense counsel responded that it was within the
court's discretion to give the instruction. (Id.
at 19-20.) Trial counsel did not object.
trial court ultimately instructed the jury regarding both
offenses. Following deliberations, the jury returned a
verdict of not guilty as to carjacking and guilty as to the
lesser offense of unlawful driving away of an automobile.
Petitioner filed an appeal of right, and the Michigan Court
of Appeals affirmed Petitioner's conviction. People
v. Blackshire, No. 317594, 2014 Mich.App. LEXIS 2404
(Mich. Ct. App. Dec. 9, 2014).
filed an application for leave to appeal in the Michigan
Supreme Court, raising the same claims he raised in the
Michigan Court of Appeals. The supreme court reversed the
decision of the court of appeals and remanded the case to the
trial court, with instructions to hold an evidentiary hearing
on Petitioner's claim that his trial counsel was
ineffective for “failing to argue that the instruction
on the lesser offense was barred by People v
Cornell, 466 Mich. 335; 646 N.W.2d 127 (2002).”
People v. Blackshire, 497 Mich. 1033, 1033-34 (2015)
(table). As of now, it seems that the evidentiary
hearing was held on September 22, 2015, but a decision has
yet to be made. People v. Blackshire, No.
12-003666-01-FC (Wayne Cty. Cir. Ct. Sept. 22, 2015),
see generally Jackson v. City of Columbus, 194 F.3d
737, 745 (6th Cir. 1999) (court may take judicial notice of
public documents considered “not to be subject to
the Court may grant habeas relief to a state prisoner, he
must exhaust any 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).
applicant has not exhausted available state remedies if he
has the right under state law to raise, by any available
procedure, the questions presented. See 28 U.S.C.
§ 2254(c). Generally, a habeas petition must be denied
on exhaustion grounds when an appeal challenging the
conviction is still pending in the state courts. See
Juliano v. Cardwell, 432 F.2d 1051 (6th Cir. 1970)
(dismissing petition for failure to exhaust because an appeal
from the denial of a post-conviction motion was still pending
in the state's supreme court); Haggard v.
Tennessee, 421 F.2d 1384, 1386 (6th Cir. 1970)
(dismissing habeas petition for lack of exhaustion because a
petition for post-conviction relief was pending in the
state's appellate court).
the Michigan Supreme Court remanded Petitioner's case to
the trial court for an evidentiary hearing to determine
whether his trial counsel was ineffective for failing to
argue that the instruction on the lesser offense was barred
by a previous case from the Michigan Supreme Court.
People v. Blackshire, 497 Mich. 1033, 1033-34 (2015)
(citing People v. Cornell, 466 Mich. 335 (2002)).
The trial court has not yet issued a decision. If Petitioner
prevails on this claim on remand, he will be entitled to a
new trial and the claims raised in this petition will be
mooted. Thus, this petition is premature, because Petitioner
has not exhausted his state court remedies as required by
the petition is DISMISSED WITHOUT PREJUDICE for failure to
Court also denies a certificate of appealability. In order to
obtain a certificate of appealability, Petitioner must make
“a substantial showing of the denial of a
constitutional right.” See 28 U.S.C. §
2253(c)(2). Under this standard, a petitioner must
demonstrate that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition should
have been resolved in a different manner or that the issues
presented were ‘adequate to deserve encouragement to
proceed further.'” Slack v. McDaniel, 529
U.S. 473, 483 (2000) (quoting Barefoot v. Estelle,
463 U.S. 880, 893 n.4 (1983)). This determination
“requires an overview of the claims in the habeas
petition and a general assessment of their merit, ” but
“does not require a showing that the appeal will
succeed.” Miller-El v. Cockrell, 537 U.S. 322,
337 (2003). Petitioner fails to make a substantial showing of
the denial of a federal constitutional right, given that he
has not yet exhausted his remedies before the state courts.
the Court denies leave to proceed in forma pauperis
on appeal. A court may grant in forma pauperis
status if the court finds that an appeal would be taken in
good faith. See 28 U.S.C. § 1915(a)(3);
Foster v. Ludwick, 208 F.Supp.2d 750, 764 (E.D.
Mich. 2002) (“The standard for issuing a certificate of
appealability has a higher threshold than the standard for
granting in forma pauperis status, which requires
showing that the appeal is not frivolous.”) (citing
United States v. Youngblood,116 F.3d 1113, 1115
(5th Cir. ...