United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER DISMISSING WITHOUT PREJUDICE THE
PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
V. PARKER U.S. DISTRICT JUDGE.
a pro se habeas case brought pursuant to 28 U.S.C. §
2254. Following a jury trial in the Circuit Court for Oakland
County, Michigan, Petitioner Donald Raleigh
(“Petitioner”) was convicted of first-degree
felony murder and first-degree child abuse, in violation of
Michigan Compiled Laws Sections 750.316(1)(b) and
750.136b(2), respectively. In 2013, the state trial court
sentenced Petitioner as a fourth habitual offender under
Michigan Compiled Laws Section 769.12 to life imprisonment
without parole on the murder conviction and 75 to 125 years
imprisonment on the child abuse conviction. In his
application for the writ of habeas corpus, Petitioner raises
the following claims in support of his request for relief:
(1) his confession was coerced/involuntary and violated his
Miranda rights, his due process rights, his right
against self-incrimination, and his equal protection rights,
and its admission constituted judicial misconduct; (2) the
prosecutor engaged in misconduct; and (3) trial and appellate
counsel were ineffective. For the reasons set forth below,
the Court is dismissing without prejudice the petition for a
writ of habeas corpus. The Court also is denying a
certificate of appealability and leave to proceed in forma
pauperis on appeal.
prisoner filing a petition for a writ of habeas corpus under
§ 2254 must first exhaust all state remedies. See
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
(“state prisoners must give the state courts one full
fair opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process”); Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994). To satisfy the exhaustion
requirement, the claims must be “fairly
presented” to the state courts, meaning that the
petitioner must have asserted both the factual and legal
bases for the claims in the state courts. McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)
(citing McMeans). The claims also must be presented
to the state courts as federal constitutional issues.
Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984).
In Michigan, each issue must be presented to both the
Michigan Court of Appeals and the Michigan Supreme Court to
satisfy the exhaustion requirement. Welch v. Burke,
49 F.Supp.2d 992, 998 (E.D. Mich. 1999); see also Hafley
v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The
burden is on the petitioner to prove exhaustion.
Rust, 17 F.3d at 160.
record before the Court indicates that Petitioner did not
raise his Miranda violation, judicial misconduct,
prosecutorial misconduct, or ineffective assistance of
appellate counsel claims on direct appeal before the Michigan
Court of Appeals. He first raised those claims before the
Michigan Supreme Court. Presenting new issues for the first
time before a state supreme court on discretionary review,
however, does not amount to a “fair presentation”
of those claims to the state courts for exhaustion purposes.
Castille v. Peoples, 489 U.S. 346, 351 (1989).
Petitioner thus has failed to properly exhaust all of his
claims in the state courts before seeking federal habeas
has an available avenue for relief in the state court system
such that his pursuit of state court remedies would not be
futile. For example, he may file a motion for relief from
judgment with the state trial court under the Michigan Court
Rules and seek further review in the state appellate courts
as necessary. The unexhausted claims should be addressed to,
and properly considered by, the state courts in the first
instance. Otherwise, this Court cannot apply the standard
applicable to reviewing state court convictions found in
a federal district court should dismiss a “mixed”
habeas petition, that is, one containing both exhausted and
unexhausted claims, “leaving the prisoner with the
choice of returning to state court to exhaust his claims or
amending and resubmitting the habeas petition to present only
exhausted claims to the district court.” Rose v.
Lundy, 455 U.S. 509, 510 (1982); see also Rust,
17 F.3d at 160. A federal court has discretion to stay a
mixed habeas petition to allow a petitioner to present his
unexhausted claims to the state courts in the first instance
and then return to federal court on a perfected petition.
Rhines v. Weber, 544 U.S. 269, 276 (2005). Stay and
abeyance is available only in “limited circumstances,
” however, such as when the one-year statute of
limitations applicable to federal habeas actions poses a
concern and the petitioner demonstrates “good
cause” for the failure to exhaust state court remedies
before proceeding in federal court, there is no evidence of
intentional delay, and the unexhausted claims are not
“plainly meritless.” Id. at 277.
Petitioner does not request a stay, nor does he show the need
for a stay.
the applicable one-year statute of limitations set forth in
28 U.S.C. § 2244(d) does not pose a problem for
Petitioner provided he pursues his state court remedies in a
prompt fashion. The Michigan Supreme Court denied Petitioner
leave to appeal on September 9, 2015. People v.
Raleigh, 868 N.W.2d 630 (Mich. 2015). The limitations
period did not begin to run until 90 days later, on or about
December 8, 2015. See Jimenez v. Quarterman, 555
U.S. 113, 119-20 (2009); Lawrence v. Florida, 549
U.S. 327, 333 (2007); see also S.Ct. R. 13(1).
Petitioner dated his federal habeas petition on September 9,
2016. Thus, nine months of the one-year period had run when
Petitioner instituted this action. While the time in which a
habeas case is pending in federal court is not statutorily
tolled, such time is equitably tolled by the federal habeas
courts. See Duncan v. Walker, 533 U.S. 167, 181-82
(2001) (ruling that a federal habeas petition is not an
“application for State post-conviction or other
collateral review” within the meaning of 28 U.S.C.
§ 2244(d)(2) so as to statutorily toll the limitations
period); Johnson v. Warren, 344 F.Supp.2d 1081,
1088-89 (E.D. Mich. 2004) (concluding that the time during
which the petitioner's first-filed habeas petition was
pending in the federal habeas court should be equitably
tolled). Petitioner thus has sufficient time-- i.e., about
three months-- to seek collateral review of his unexhausted
claims in the state courts and then return to federal court
on a perfected petition. Pursuant to § 2254,
“[t]he time during which a properly filed application
for State post-conviction or other collateral review …
is pending shall not be counted toward [the limitation
period].” 28 U.S.C. § 2254(d)(2).
while there is no indication that Petitioner has engaged in
“intentionally dilatory tactics, ” he neither
alleges nor establishes good cause for failing to fully
exhaust all of his claims in the state courts before seeking
relief in federal court. Even if appellate counsel was
ineffective during the direct appeal process, Petitioner
offers no reason why he was unable to pursue his issues on
collateral review in the state courts before filing his
federal petition. Lastly, at least some of Petitioner's
unexhausted claims do not appear to be “plainly
such circumstances, a stay is unwarranted and a
non-prejudicial dismissal of the petition is appropriate.
reasons stated, the Court concludes that Petitioner has not
exhausted available state court remedies as to all of his
habeas claims. The Court, therefore, is dismissing his
petition without prejudice.
Petitioner may appeal this decision, a certificate of
appealability must issue. See 28 U.S.C. §
2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When a federal
court denies relief on procedural grounds without addressing
the merits, a certificate of appealability should issue only
if it is shown that jurists of reason would find it debatable
whether the petitioner states a valid claim of the denial of
a constitutional right, and that jurists of reason would find
it debatable whether the ...