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Burns v. Woods

United States District Court, E.D. Michigan, Southern Division

January 20, 2017

DOUGLAS BURNS, Petitioner,
v.
JEFFREY WOODS, Respondent.

          OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR A WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE

          HONORABLE NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.

         Douglas 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, M.C.L.A. 750.227b.

         As part 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.[1] 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.

         In 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.

         I. Discussion

         Petitioner 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).

         Petitioner filed his petition for a writ of habeas corpus on October 1, 2014, in which he sought habeas relief on the following grounds:[2]

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.

         Respondent 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.

         Ineffective 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. Id.

         A 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.

         The 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 ...


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