United States District Court, E.D. Michigan, Northern Division
OPINION AND ORDER SUMMARILY DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, DENYING MOTION TO
STAY PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND
DENYING PERMISSION TO PROCEED ON APPEAL IN FORMA
L. LUDINGTON United States District Judge.
of Michigan prisoner Jamshid Bakshi Zahraie,
(“Petitioner”), has filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254, ECF No. 1, and a
motion to stay the case pending exhaustion of state
post-conviction remedies. ECF No. 3. The petition challenges
Petitioner's March 13, 2014, Tuscola Circuit Court
convictions for racketeering, Mich. Comp. Laws §
750.159i, and related narcotics offenses. The trial court
sentenced Petitioner as a third-time habitual offender to 15
to 40 years for the racketeering conviction and lesser
concurrent terms for the narcotics offenses.
petition raises fourteen claims: (1) Petitioner was convicted
under an unconstitutionally vague statute, (2) Petitioner was
charged under an “inapplicable” statute, (3)
Petitioner was denied the effective assistance of appellate
counsel, (4) Petitioner was denied the effective assistance
of trial counsel, (5) there was outrageous governmental
conduct during the investigation, (6) there was an illegal
search and seizure, (7) Petitioner was denied the right to
present a complete defense, (8) insufficient evidence was
presented at trial to sustain Petitioner's convictions,
(9) the government exercised racially motivated peremptory
strikes of jurors, (10) the trial court erroneously admitted
evidence at trial, (11) the jury instructions were erroneous,
(12) the trial judge was biased against Petitioner and
committed misconduct, (13) the cumulative effect of these
errors rendered Petitioner's trial unfair, and (14)
Petitioner is entitled to resentencing. Petitioner asserts in
his petition that he is presenting all of these claims to the
state trial court in a motion for relief from judgment.
to the allegations in the petition, and as confirmed by the
Michigan One Court of Justice Website, Petitioner's
direct appeal ended in the state courts when his motion to
reconsider the denial of his application for leave to appeal
was denied by the Michigan Supreme Court on June 28, 2016.
People v. Zahraie, No. 152212 (Mich. Sup. Ct. June
28, 2016).Petitioner filed a petition for a writ of
certiorari in the United States Supreme Court, but it was
denied on October 3, 2016. Zahraie v. Michigan, 137
S.Ct. 115 (2016). Petitioner's motion requests that the
case be stayed and held in abeyance while he completes
post-conviction review of all of his habeas claims in the
habeas relief may be granted to a state prisoner, the
prisoner must exhaust remedies available in the state courts.
28 U.S.C. § 2254(b)(1); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires
a petitioner to “fairly present” federal claims
so that state courts have a “fair opportunity” to
apply controlling legal principles to the facts bearing upon
a petitioner's constitutional claim. See
O'Sullivan, 526 U.S. at 842; Duncan v.
Henry, 513 U.S. 364, 365 (1995); Anderson v.
Harless, 459 U.S. 4, 6 (1982); Picard v.
Connor, 404 U.S. 270, 275-77 (1971). To fulfill the
exhaustion requirement, a petitioner must have fairly
presented his federal claims to all levels of the state
appellate system. Duncan, 513 U.S. at 365-66;
Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009);
Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.
1990). Here, Petitioner states that he is currently in the
process of exhausting his claims in the state courts in a
state post-conviction review proceeding under Michigan Court
Rule 6.501 et seq.
district court can and must raise the exhaustion issue on its
own when it clearly appears that habeas claims have not been
presented to the state courts. See Prather v. Rees,
822 F.2d 1418, 1422 (6th Cir. 1987); Allen, 424 F.2d
Rose v. Lundy, 455 U.S. 509, 522 (1982), district
courts are directed to dismiss without prejudice petitions
containing unexhausted claims in order to allow petitioners
to return to state court to exhaust remedies. However, since
the habeas statute was amended to impose a one-year statute
of limitations on habeas claims, see 28 U.S.C.
§ 2244(d)(1), dismissal without prejudice often
effectively precludes future federal habeas review.
Petitioner's application is subject to the one-year
statute of limitations provided in 28 U.S.C. §
2244(d)(1). Under § 2244(d)(1)(A), the one-year
limitations period runs from “the date on which the
judgment became final by the conclusion of direct review or
the expiration of the time for seeking such review.”
Petitioner completed direct review of his conviction when the
United States Supreme Court denied his petition for writ of
certiorari on October 3, 2016. See Lawrence v.
Florida, 549 U.S. 327, 332-33 (2007); Bronaugh v.
Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The statute of
limitations for filing this case therefore began to run the
next day. Thus, approximately six months have passed on the
statute of limitations, leaving Petitioner with another six
months on the limitations period in which to file his motion
for relief from judgment in the state trial court. Under
§2244(d)(2), Petitioner's properly filed state
post-conviction review proceeding will act to toll the
limitations period. Therefore, Petitioner is not in danger of
running afoul of the statute of limitations, and there is no
basis for staying this case rather than dismissing it without
prejudice. See Rhines v. Weber, 544 U.S. 269, 278
(2005) (stay of habeas case requires showing of “good
the petition will be summarily dismissed without prejudice.
Once Petitioner completes state post-conviction review he
will have ample time-nearly half a year-to properly file a
Rule of Appellate Procedure 22 provides that an appeal may
not proceed unless a certificate of appealability
(“COA”) is issued under 28 U.S.C. § 2253.
Rule 11 of the Rules Governing Section 2254 Proceedings now
requires a district court to “issue or deny a
certificate of appealability when it enters a final order
adverse to the applicant.” A COA may be issued
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
case, reasonable jurists would not debate the conclusion that
the petition should be summarily dismissed without prejudice.
Therefore, a certificate of appealability is denied.
Permission to appeal in forma pauperis is also denied because
any appeal of this decision ...