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Dewey v. Horton

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

March 28, 2017

JEREMIAH ALLEN DEWEY, Petitioner,
v.
CONNIE HORTON, Respondent.

          OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS

          STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.

         Jeremiah Allen Dewey is confined at the Chippewa Correctional Facility in Kincheloe, Michigan and seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, Dewey challenges his conviction and sentence for five counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b. For the reasons stated below, the application for a writ of habeas corpus will be summarily dismissed without prejudice.

         BACKGROUND

         Dewey was convicted following a jury trial in the Presque Isle County Circuit Court that involved two consolidated cases. He was sentenced to concurrent terms of 13 to 25 years in prison in one case, and 22 to 40 years in the other. The Michigan Court of Appeals remanded the case for re-sentencing, People v. Dewey, No. 324275, 2016 WL 620147 (Mich. Ct. App. Feb. 16, 2016), lv. den. 500 Mich. 855 (2016), and on October 3, 2016, Dewey was re-sentenced to the same term of 22 to 40 years in prison. The Michigan Supreme Court declined to reopen his old appeal. Dewey also filed a state petition for a writ of habeas corpus in the Montcalm County Circuit Court during the pendency of his appeal of right, but the petition was denied.

         Dewey now seeks a writ of habeas corpus on the following grounds:

I. U.S. Constitutional rights violations of Due Process, Fair Trial, Confront Witness, Obtain Witness.
II. Ineffective Assistance of Counsel by court appointed attorney Daniel Martin, retained attorney Patrick Crowley, Jacob Sartz, and court appointed appeal attorney Daniel Rust.
III. Lies and Perjury were allowed to be made by MDHHS CPS worker Brooke Dell and MDHHS Fostercare worker Danielle Myers about this case violating Hardwick v. Vreeken 9th District Court.
IV. Conspiracy to interfere with civil rights.

         DISCUSSION

         The petition is subject to dismissal because none of Dewey's claims have been properly exhausted with the state courts. As a general rule, a state prisoner seeking federal habeas relief must first exhaust his available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and (c); Picard v. Connor, 404 U.S. 270, 275-78 (1971). The Antiterrorism and Effective Death Penalty Act (AEDPA) preserves the traditional exhaustion requirement, which mandates dismissal of a habeas petition containing claims that a petitioner has a right to raise in the state courts but has not. See Welch v. Burke, 49 F.Supp.2d 992, 998 (E.D. Mich. 1999). Accordingly, a prisoner confined pursuant to a Michigan conviction must raise each habeas issue in both the Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal habeas corpus relief. Mohn v. Bock, 208 F.Supp.2d 796, 800 (E.D. Mich. 2002). The petitioner has the burden of proving that he has exhausted his state court remedies, Sitto v. Bock, 207 F.Supp.2d 668, 675 (E.D. Mich. 2002), and the failure to exhaust state court remedies may be raised sua sponte by a federal court, see Benoit v. Bock, 237 F.Supp.2d 804, 806 (E.D. Mich. 2003); see also 28 U.S.C. § 2254(b)(3) (requiring a state's waiver of the exhaustion requirement to be expressly made through counsel).

         At the outset, Dewey's motion before the Michigan Supreme Court to reopen his appeal was untimely. Dewey claims that he attempted to present his four instant claims to that court, but it sent him a letter on November 7, 2016 informing him that it considered the case closed. See Application, ECF 1, PgID 4. The Michigan Supreme Court denied Dewey's original application for leave to appeal on September 6, 2016. Under Michigan Court Rule 7.311(F), Dewey then had 21 days to file a motion for rehearing. He did not file his application to reopen the appeal until October 30, 2016 - well after the 21-day period expired.

         Moreover, the Michigan Supreme Court was precluded from considering the issues Dewey raised in the motion to reopen. When an appellant fails to appeal an issue to the Michigan Court of Appeals, the issue is considered waived before the Michigan Supreme Court. Lawrence v. Will Darrah & Assocs., Inc., 445 Mich. 1, 4 n.2 (1994). By Dewey's own admission, he did not raise any of his claims in his appeal brief before the Michigan Court of Appeals, and a review of the appeal brief confirms the absence of the claims. See Appellant's Br. on Appeal, ECF 1-2, PgID 213-54.

         Dewey has therefore failed to meet the exhaustion requirement. Raising a claim for the first time before the state courts on discretionary review does not amount to a "fair presentation" of the claim to the state courts for exhaustion purposes. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Because Dewey failed to present his claims on his appeal of right with the Michigan Court of Appeals, his subsequent attempt to present those claims to the Michigan Supreme Court does not satisfy the exhaustion requirement for habeas ...


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