United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION
FOR A WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE
HONORABLE NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.
Burns, (“Petitioner”), confined at the Chippewa
Correctional Facility in Kincheloe, Michigan, filed a
petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, petitioner
challenges his convictions for two counts of assault with
intent to commit murder, M.C.L.A. 750.83, and two counts of
possession of a firearm during the commission of a felony,
of their answer, respondent alleges that petitioner's
second and third claims are defaulted because petitioner
abandoned the claims by not properly raising them in his
Standard 4 brief on his appeal of right. Petitioner claims
that the default should be excused because appellate counsel
was ineffective for not raising these claims in his appeal
brief, forcing petitioner to raise these claims in his own
pro se Standard 4 brief. Petitioner's ineffective
assistance of appellate counsel claim has yet to be exhausted
with the state courts and thus cannot be used either to
excuse this default or as an independent claim for relief.
lieu of dismissing the petition for a writ of habeas
corpus, the Court will hold the petition in abeyance and will
stay the proceedings under the terms outlined below in the
opinion to permit petitioner to return to the state courts to
exhaust his ineffective assistance of appellate counsel
claim. The Court will also administratively close the case.
was convicted of the above offenses following a jury trial in
the Oakland County Circuit Court. Petitioner's conviction
was affirmed on appeal. People v. Burns, No. 305037,
2012 WL 4093758 *1 (Mich. Ct. App. Sept. 18, 2012), lv.
den. 493 Mich. 941, 826 N.W.2d 719 (Mich. 2013).
filed his petition for a writ of habeas corpus on October 1,
2014, in which he sought habeas relief on the following
I. Denial of right to present a defense.
II. Ineffective assistance of trial counsel.
III. The trial court inappropriately ignored petitioner's
request for substitute counsel.
argues that petitioner's second and third claims are
defaulted because petitioner abandoned the claims by not
properly raising them in his Standard 4 brief on his appeal
of right. Petitioner argues that the default should be
excused because appellate counsel was ineffective for not
raising these claims in his appeal brief, forcing petitioner
to raise these claims pro se in an inadequate manner
in his own Standard 4 brief.
assistance of counsel may establish cause for a procedural
default. See Edwards v. Carpenter, 529 U.S. 446,
451-52 (2000). However, for ineffective assistance of counsel
to constitute cause to excuse a procedural default, that
claim itself must be exhausted in the state courts.
review of petitioner's briefs on appeal to the Michigan
Court of Appeals and the Michigan Supreme Court shows that
petitioner never raised an ineffective assistance of
appellate counsel claim on his direct appeal.
Petitioner's claim of ineffective assistance of appellate
counsel is subject to the exhaustion requirement. See
Baldwin v. Reese, 541 U.S. 27, 30-33 (2004). To the
extent that petitioner is attempting to argue ineffective
assistance of appellate counsel either to excuse the default
or as an independent claim, he must first exhaust his claim
in the state courts.
Court's only concern in dismissing the current petition
on exhaustion grounds involves the possibility that
petitioner might be prevented under the one year statute of
limitations contained within 28 U.S.C. § 2244(d)(1) from
re-filing a petition for a ...