United States District Court, E.D. Michigan, Southern Division
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
J. Tarnow Senior United States District Judge.
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner DeVonne Marsh (“Petitioner”)
pleaded guilty to the attempted delivery or manufacture of
less than 50 grams of a controlled substance in the Wayne
County Circuit Court and was sentenced to one to five years
imprisonment in 2014. In his pleadings, he raises claims
concerning his arrest without a warrant and the endorsement
of the felony complaint, the filing of a return on the
information, the filing of a felony information, and the
state court's jurisdiction. For the reasons stated, 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 petition for a writ of habeas corpus under
28 U.S.C. §2254 must first exhaust state court 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 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 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.
has not met his burden of demonstrating exhaustion of state
court remedies. In his pleadings, he indicates that he filed
state habeas actions in the Marquette County Circuit Court
and the Michigan Court of Appeals, both of which were denied.
Petitioner, however, does not show that he pursued a direct
appeal or a motion for relief from judgment in the state
courts. While Petitioner's time for filing a direct
appeal in the state courts has likely expired, there is no
time limit for filing a motion for relief from judgment
pursuant to Michigan Court Rule 6.500 et seq.
Petitioner thus has an available remedy in the Michigan
courts which must be exhausted before proceeding in federal
court. He may raise his claims in a motion for relief from
judgment pursuant to Michigan Court Rule 6.500 before the
state trial court and then pursue his claims in the state
appellate courts as necessary.
law provides that a habeas petitioner is only entitled to
relief if he can show that the state court adjudication of
his claims resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court of the United
States. 28 U.S.C. § 2254(d). If the Court were to review
Petitioner's unexhausted issues, such an action would
deny the state courts the deference to which they are
entitled. The state courts must first be given a fair
opportunity to rule upon Petitioner's claims before he
litigates those claims in federal court. Otherwise, the Court
is unable to apply the standard found at 28 U.S.C. §
reasons stated, the Court concludes that Petitioner has not
exhausted available state court remedies as to his habeas
claims. Accordingly, the Court DISMISSES WITHOUT
PREJUDICE the petition for a writ of habeas corpus.
The Court makes no determination as to the merits or
timeliness of the petition at this time.
Petitioner may appeal the Court's decision, 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 federal court dismisses a
habeas claim on procedural grounds without addressing the
merits, 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 any appeal cannot be taken
in good faith. Fed. R. App. P. 24(a).