United States District Court, E.D. Michigan, Southern Division
DEONDRE L. COLEMAN, #252207, Petitioner,
LORI GIDLEY, Respondent.
OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Corbett O'Meara United States District Judge
prisoner Deondre L. Coleman (“Petitioner”) has
filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 asserting that he is being
denied 88 days of good conduct/disciplinary credits. He
alleges violations of his equal protection and due process
rights under the Fifth and Fourteenth Amendment, an abuse of
discretion, an ex post facto violation, and an Eighth
Amendment violation. Petitioner filed a request for good
time/disciplinary credits with the Oakland County Circuit
Court, which was denied on August 16, 2016, as well as a
motion for reconsideration, which was denied on October 14,
2016. See People v. Coleman, No. 15-255257-FH
(Oakland Co. Cir. Ct.). Petitioner indicates that he has not
appealed the state court's decision. Petitioner dated his
federal habeas petition on December 27, 2016 and it was filed
by the Court on January 3, 2017.
reasons stated herein, the Court dismisses without prejudice
the petition for a writ of habeas corpus. The Court also
denies a certificate of appealability and denies leave to
proceed in forma pauperis on appeal.
prisoner filing a habeas petition under 28 U.S.C. §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 this requirement, the claims
must be “fairly presented” to the state courts,
meaning that the prisoner 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
must also be presented to the state courts as federal
constitutional issues. Koontz v. Glossa, 731 F.2d
365, 368 (6th Cir. 1984). Each issue must be presented to 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). While the
exhaustion requirement is not jurisdictional, a “strong
presumption” exists that a prisoner must exhaust
available state remedies before seeking federal habeas
review. Granberry v. Greer, 481 U.S. 129, 131,
134-35 (1987). The burden is on the petitioner to prove
exhaustion. Rust, 17 F.3d at 160.
case, Petitioner admits that he has not fully exhausted his
habeas claims in the Michigan courts before proceeding in
this Court on federal habeas review. While he filed a request
for disciplinary credits with the Oakland County Circuit
Court, he did not pursue an appeal of that court's
decision denying him relief. Moreover, he fails to allege or
establish that he presented his specific constitutional
claims to the state courts in any forum. Petitioner has an
available avenue for relief in the state court system such
that his pursuit of state remedies would not be futile. For
example, he may be able to pursue an appeal of the Oakland
County Circuit Court's decision, and/or seek additional
relief in the Michigan courts through the filing of a state
habeas corpus petition or a mandamus action. See Hughes
v. Bauman, No. 10-13255, 2011 WL 6781019, *2 (E.D. Mich.
Dec. 27, 2011) (discussing procedure and citing Mich. Ct. R.
3.303(A)(2) and Mich. Ct. R. 3.305(A)(1)); see also
Triplett v. Deputy Warden, 142 Mich.App. 774, 779-80,
371 N.W.2d 862 (1985); Butler v. Warden, 100
Mich.App. 179, 298 N.W.2d 701 (1980). Any doubts about the
availability of state corrective processes are resolved in
favor of exhaustion. Lukity v. Elo, No.
99-CV-74849-DT, 2000 WL 1769507, *4 (E.D. Mich. Oct. 10,
2000). The unexhausted claims should be addressed to, and
considered by, the state courts in the first instance.
Otherwise, the Court cannot apply the standard found at 28
U.S.C. § 2254.
federal district court has discretion to stay a mixed habeas
petition, containing both exhausted and unexhausted claims,
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” such as
when the one-year statute of limitations applicable to
federal habeas actions poses a concern, and when the
petitioner demonstrates “good cause” for the
failure to exhaust state court remedies before proceeding in
federal court and the unexhausted claims are not
“plainly meritless.” Id. at 277.
however, is unwarranted. First, Petitioner does not request a
stay nor indicate that his circumstances justify one. Second,
none of his habeas claims are exhausted. A court ordinarily
cannot stay a petition containing only unexhausted claims. In
such a case, a non-prejudicial dismissal of the petition is
appropriate. See Hines v. Romanowski, No.
2:14-CV-13983, 2014 WL 5420135, *2 (E.D. Mich. Oct. 22, 2014)
(dismissing case where all claims were unexhausted);
Wilson v. Warren, No. 06-CV-15508, 2007 WL 37756, *2
(E.D. Mich. Jan.4, 2007) (“a stay of petitioner's
application for a writ of habeas corpus would be
inappropriate because all of petitioner's claims are
unexhausted and thus, the Court lacks jurisdiction over the
petition while the petitioner pursues his claims in state
court”); accord Rasberry v. Garcia, 448 F.3d
1150, 1154 (9th Cir. 2006) (Rhines stay and abeyance
rule does not apply to a petition alleging only unexhausted
claims); United States v. Hickman, 191 F.App'x
756, 757 (10th Cir. 2006) (“[t]raditionally, when a
petition contains entirely unexhausted state claims, the
petition would be dismissed without prejudice....”);
McDonald v. Bell, No. 1:06-cv-406, 2009 WL 1525970
(W.D. Mich. June 1, 2009) (concluding that stay and abeyance
procedure does not apply to petition containing only
unexhausted claims and dismissing petition); Mimms v.
Russell, No. 1:08-cv-79, 2009 WL 890509 (S.D. Ohio March
31, 2009) (habeas petition subject to dismissal where
petitioner did not exhaust any of his state court remedies on
any of his habeas claims); Murphy v. Feneis, No.
07-153, 2007 WL 2320540 at *7 (D. Minn. Aug.10, 2007)
(“Given the narrow issue before the Supreme Court
regarding mixed petitions, this Court refuses to extend
Rhines to allow a court to stay a habeas petition,
so that a petitioner can exhaust his state remedies, where,
as here, the petition contains only unexhausted
even assuming that Petitioner has not engaged in
“intentionally dilatory tactics, ” he has not
shown good cause for failing to exhaust his claims in the
state courts before seeking federal habeas relief. Lastly,
while the pleadings before the Court are not entirely clear,
some of his claims appear to concern matters of federal law
which may not be “plainly meritless.” Given 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
properly exhausted his habeas claims in the state courts,
that he must do so before proceeding on federal habeas
review, and that a stay is unwarranted. Accordingly, the
Court DISMISSES WITHOUT PREJUDICE the petition for a writ of
habeas corpus. The Court makes no determination as to the
merits of Petitioner's claims.
Petitioner may appeal, a certificate of appealability must
issue. 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 district court denies relief on procedural grounds
without addressing the merits of a claim, a certificate of
appealability should issue 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
court was correct in its procedural ruling. Slack v.
McDaniel, 529 U.S. 473, 484-85 (2000). Reasonable
jurists could not debate the correctness of the Court's
procedural ruling. Accordingly, the Court DENIES a
certificate of appealability. The Court also DENIES leave to
proceed in forma pauperis on appeal as an appeal
cannot be taken in good faith. Fed. R. App. P. 24(a).