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
D. BORMAN UNITED STATES DISTRICT JUDGE
prisoner William White ("Petitioner") has filed a
pro se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254 challenging his Saginaw County Circuit
Court no contest plea to second-degree murder for which he
was sentenced to 30 to 50 years imprisonment in 2014. In his
pleadings, Petitioner raises claims concerning the factual
basis for his plea, the effectiveness of trial counsel, and
the voluntariness of his plea. Respondent has filed an answer
to the petition contending that it should be dismissed
because the claims are unexhausted and lack merit. For the
reasons stated herein, 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 all state remedies.
See O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999) ("state prisoners must give the state courts one
full 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). 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
raised in the state courts as federal constitutional issues.
Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984).
A Michigan prisoner must raise each issue he seeks to present
in a federal habeas proceeding to both the Michigan Court of
Appeals and the Michigan Supreme Court to satisfy the
exhaustion requirement. Hafley v. Sowders, 902 F.2d
480, 483 (6th Cir. 1990); Welch v. Burke, 49
F.Supp.2d 992, 998 (E.D. Mich. 1999). The burden is on the
petitioner to prove exhaustion. Rust, 17F.3datl60.
has not met his burden. The record indicates that he raised
his habeas claims in a delayed application for leave to
appeal to the Michigan Court of Appeals on direct appeal, but
his application was dismissed as untimely. People v.
White, No. 325215 (Mich. Ct. App. Jan. 21, 2015). He
then filed an application for leave to appeal with the
Michigan Supreme Court, which was denied in a standard order.
People v. White, 498 with the Michigan Supreme
Court, which was denied in a standard order. People v.
White, 498 Mich. 892, 869 N.W.2d 621 (2015). Because
Petitioner's appeal to the Michigan Court of Appeals was
dismissed as untimely, none of his claims were fairly
presented to all levels of the Michigan courts for purposes
of satisfying the exhaustion requirement. See McBride v.
Woods, No. 06-CV-10170, 2010 WL 3419507, *3 (E.D. Mich.
Aug. 27, 2010) (citing cases). A habeas petitioner
"cannot circumvent the exhaustion requirement by failing
to comply with state procedural rules." Coleman v.
Mitchell 244 F.3d 533, 538 (6th Cir. 2001).
has an available state court remedy to challenge his
conviction which must be exhausted before he seeks federal
habeas review. He may file a motion for relief from judgment
pursuant to Michigan Court Rule 6.500 with the state trial
court and then pursue his claims through the state appellate
courts as necessary. Federal 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).
The state courts must first be given a fair opportunity to
rule upon Petitioner's claims before he can present them
in federal court. Otherwise, the Court cannot apply the
standard found at 28 U.S.C. § 2254.
federal court has discretion to stay a mixed habeas petition,
containing both exhausted and unexhausted claims, to allow a
petitioner to present the unexhausted claims to the state
courts in the first instance and then return to federal court
on a perfected petition. Rhines v. Weber, 544 U.S.
269, 276 (2005). Stay and abeyance is available only in
"limited circumstances" such as when the one-year
statute of limitations applicable to federal habeas actions
poses a concern, and when the petitioner demonstrates
"good cause" for the failure to exhaust state court
remedies before proceeding in federal court and the
unexhausted claims are not "plainly meritless."
Id. at 277.
does not request a stay nor indicate that his circumstances
justify a stay. Moreover, a stay is inappropriate. All of
Petitioner's habeas claims are unexhausted. The Court
cannot ordinarily stay a petition containing only unexhausted
claims. In such a case, a non-prejudicial dismissal of the
petition is appropriate. See Hines v. Romanowski,
No. 2:14-CV-13983, 2014 WL 5420135, *2 (E.D. Mich. Oct. 22,
2014) (dismissing case where all claims were unexhausted);
Wilson v. Warren, No. 06-CV-15508, 2007 WL 37756, *2
(E.D. Mich. Jan. 4, 2007) ("a stay of petitioner's
application for a writ of habeas corpus would be
inappropriate, because all of petitioner's claims are
unexhausted and thus, the Court lacks jurisdiction over the
petition while the petitioner pursues his claims in state
court"); accord Rasberry v. Garcia, 448 F.3d
1150, 1154 (9th Cir. 2006) (Rhines stay and abeyance
rule does not apply to a petition alleging only unexhausted
claims); United States v. Hickman, 191 F.App'x
756, 757 (10th Cir. 2006) ("[traditionally, when a
petition contains entirely unexhausted state claims, the
petition would be dismissed without prejudice....");
McDonald v. Bell, No. 1:06-cv-406, 2009 WL 1525970
(W.D. Mich. June 1, 2009) (concluding that the stay and
abeyance procedure does not apply to a petition containing
only unexhausted claims); Mimms v. Russell, No.
1:08-cv-79, 2009 WL 890509 (S.D. Ohio March 31, 2009) (habeas
petition subject to dismissal where petitioner did not
exhaust state court remedies on any of his habeas claims);
Murphy v. Feneis, No. 07-153, 2007 WL 2320540, *7
(D. Minn. Aug.10, 2007) ("Given the narrow issue before
the Supreme Court regarding mixed petitions, this Court
refuses to extend Rhines to allow a court to stay a
habeas petition, so that a petitioner can exhaust his state
remedies, where, as here, the petition contains only
unexhausted claims."). Given such circumstances, a stay
is unwarranted and a non-prejudicial dismissal of the habeas
petition is appropriate.
reasons stated, the Court concludes that Petitioner has not
exhausted his claims in the state courts and that a stay of
the proceedings is unwarranted. Accordingly, the Court
DISMISSES WITHOUT PREJUDICE the petition for a writ of habeas
corpus. The Court makes no determination as to the merits of
Petitioner may appeal this 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 court denies relief 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, ...