United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING PETITION FOR
WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, DENYING CERTIFICATE
OF APPEALABILITY, AND DENYING PERMISSION TO PROCEED ON APPEAL
IN FORMA PAUPERIS
Corbett O'Meara United States District Judge
of Michigan prisoner David Flores,
(“Petitioner”), has filed a petition for writ of
habeas corpus under 28 U.S.C. § 2254. The petition
challenges Petitioner's February 13, 2014, Adrian Circuit
Court judgment of conviction for forgery, Mich. Comp. Laws
§ 750.248, for which he received a sentence of 1½
to 14 years imprisonment. The pro se petition is poorly
drafted and difficult to understand. As best the Court can
determine it attempts to raise the following claims: (1) the
trial court was erroneously forced to sentence Petitioner to
a prison term due to his prior criminal record, (2) it is
“un-American” to keep Petitioner in prison past
his minimum sentence when he has something to offer society,
(3) Petitioner has rehabilitated himself and is no longer
interested in committing crimes. Petitioner acknowledges in
his petition that he has never presented any of these claims
to the state courts.
pled guilty to forgery in the Lenawee Circuit Court in 2013.
He was sentenced as indicated above on October 4, 2013.
According 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
the Michigan Supreme Court denied his application for leave
to appeal on December 23, 2015. People v. Flores,
No. 150876 (Mich. Sup. Ct. Dec. 23, 2015). Petitioner
acknowledges in his petition that he has never sought
post-conviction review in the state courts following his
direct appeal, and he did not present any of his habeas
claims to the state courts on direct review. See Dkt. 1,
¶¶ 12(c) and (d).
the Court may grant habeas relief 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; Picard v.
Connor, 404 U.S. 270, 275-77 (1971), cited in Duncan
v. Henry, 513 U.S. 364, 365 (1995), and Anderson v.
Harless, 459 U.S. 4, 6 (1982). 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 denies that he every presented any of his habeas
claims to the state courts during his direct appeal.
Petitioner has a state court procedure available to him
because has not yet filed a motion for relief from judgment
under Michigan Court Rule 6.501.
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
at 138-39. Under Rose v. Lundy, 455 U.S. 509, 522
(1982), district courts are directed to dismiss petitions
containing unexhausted claims without prejudice in order to
allow petitioners to return to state court to exhaust
remedies. Because none of Petitioner's claims have been
exhausted, the petition is subject to dismissal on that
the Court will summarily dismiss the petition without
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, the Court concludes that reasonable jurists would not
debate the Court's conclusion that the petition should be
summarily dismissed without prejudice. Therefore, the Court
denies a certificate of appealability. The Court will also
deny permission to appeal in forma pauperis because any
appeal of this decision would be frivolous and could not be
taken in good faith. 28 U.S.C. § 1915(a)(3).
for the foregoing reasons, IT IS ORDERED that the petition
for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE;
FURTHER ORDERED that a certificate of appealability and
permission to ...