United States District Court, E.D. Michigan, Southern Division
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
CARAM STEEH UNITED STATES DISTRICT JUDGE.
Wesley Clay, (“petitioner”), confined at the
Macomb Correctional Facility in New Haven, Michigan, seeks
the issuance of a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In his pro se application, petitioner challenges
his conviction for several counts of first-degree criminal
sexual conduct. For the reasons stated below, the application
for a writ of habeas corpus is SUMMARILY DISMISSED WITHOUT
was convicted after a jury trial in the Shiawassee County
Circuit Court. Petitioner's conviction was affirmed on
appeal. People v. Clay, No. 314681, 2014 WL 2880301
(Mich. Ct. App. June 24, 2014); lv. Den. 497 Mich. 905
filed a state petition for writ of habeas corpus pursuant to
M.C.R. 3.303(A)(2), which was denied. Clay v.
Washington, No. 16-H-31714-AH (Ionia Cty. Cir. Ct. Jan.
20, 2016). Petitioner then filed a complaint for writ of
habeas corpus with the Michigan Court of Appeals, which was
denied. Clay v. Department of Corrections/Director,
No. 332573 (Mich.Ct.App. July 21, 2016); reconsideration den.
No. 332573 (Mich.Ct.App. Aug. 25, 2016). Petitioner's
application for leave to appeal to the Michigan Supreme Court
was rejected as untimely. See Letter from Inger Z.
Meyer, Deputy Clerk of the Michigan Supreme Court,
attached to the petition for writ of habeas corpus.
seeks a writ of habeas corpus on the following ground:
Should the state courts allow a criminal conviction to stand,
where the trial court erred in allowing (knowingly
permitting) one juror to answer for another juror during the
polling of the jury, in order to secure a conviction that
would have otherwise ended in mistrial.
instant petition is subject to dismissal because
petitioner's claim was not properly exhausted with the
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). See Picard v. Connor, 404 U.S. 270, 275-78
(1971). Federal district courts must dismiss habeas petitions
which contain unexhausted claims. See Pliler v.
Ford, 542 U.S. 225, 230 (2004)(citing Rose v.
Lundy, 455 U.S. 509, 510, 522 (1982)). 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); 28 U.S.C. § 2254(b)(3).
indicates that he raised his jury polling claim in his state
petition for writ of habeas corpus. This is insufficient to
satisfy the exhaustion requirement. Mich. Comp. Laws §
600.4310(3) states that an action for writ of habeas corpus
may not be brought by or on behalf of persons convicted, or
in execution, upon legal process, civil or criminal. This
statutory prohibition is consistent with the rule under
Michigan law that habeas corpus cannot serve as a substitute
for an appeal and cannot be used to review the merits of a
criminal conviction. Cross v. Department of
Corrections, 103 Mich.App. 409, 414-415; 303 N.W.2d 218
(1981)(citing People v. Price, 23 Mich.App. 663,
669; 179 N.W.2d 177 (1970)). A writ of habeas corpus in
Michigan deals only with radical defects which render a
judgment or proceeding absolutely void. Triplett v.
Deputy Warden, 142 Mich.App. 774, 780; 371 N.W.2d 862
(1985)(citing to In Re Stone, 295 Mich. 207; 294 N.W. 156
(1940)). A judgment which is merely erroneous, rather than
void, is subject to [appellate] review and may not be
collaterally attacked in a habeas proceeding. Id.
This policy of limiting habeas proceedings in Michigan is
“premised on the concern that such an action may be
abused and substituted for normal appellate
proceedings.” Walls v. Director of Institutional
Services Maxie Boy's Training School, 84 Mich.App.
355, 357; 269 N.W.2d 599 (1978). This line of cases is also
consistent with M.C.R. 6.501, which states that unless
otherwise specified, a judgment of conviction and sentence
entered by the circuit or Recorder's court that is not
subject to appellate review under subchapters 7.200 or 7.300
may be reviewed only in accordance with the provisions of
this subchapter, i.e., by the filing of a post-conviction
motion for relief from judgment. The 1989 Staff Comment to
M.C.R. 6.501 states that subchapter 6.500 “provides the
exclusive means to challenge a conviction in Michigan courts
for a defendant who has had an appeal by right or by leave,
who has unsuccessfully sought leave to appeal, or who is
unable to file an application for leave to appeal to the
Court of Appeals” because the time period for filing
such an appeal has elapsed. (emphasis added). Because Mich.
Comp. Laws § 600.4310(3) does not permit the use of a
state habeas action to challenge the legality of a
conviction, petitioner did not satisfy the exhaustion
requirement by challenging his conviction in such an action.
See Nabors v. Warden, U.S. Penitentiary at Lewisburg,
Pa., 848 F.2d 192 (Table), 1988 WL 50635, * 1 (6th Cir.
May 23, 1988); See also McPharlin v. Woods, No. 2008
WL 4534234, * 1 (E.D. Mich. Oct. 6, 2008).
can thus properly exhaust his claim by filing a
post-conviction motion for relief from judgment with the
Shiawassee County Circuit Court under Michigan Court Rule
6.500, et. seq. See Wagner v. Smith, 581 F.3d 410,
419 (6th Cir. 2009). Denial of a motion for relief from
judgment is reviewable by the Michigan Court of Appeals and
the Michigan Supreme Court upon the filing of an application
for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R.
7.302. See Nasr v. Stegall, 978 F.Supp. 714, 717
(E.D. Mich. 1997).
has failed to exhaust his state court remedies and may still
have an available state court remedy with which to do so.
Although a district court has the discretion to stay a mixed
habeas petition containing both exhausted and unexhausted
claims to allow the petitioner to present his unexhausted
claims to the state court in the first instance, See
Rhines v. Weber, 544 U.S. 269 (2005), in this case, a
stay of petitioner's application for a writ of habeas
corpus would be inappropriate, because petitioner's sole
claim is unexhausted and thus, the Court lacks jurisdiction
over the petition while the petitioner pursues his claim in
state court. See Raspberry v. Garcia, 448 F.3d 1150,
1154 (9th Cir. 2006)(declining to extend the stay and
abeyance procedure enunciated in Rhines when the habeas
petition contains only unexhausted claims); See also
Meyer v. Warren, 2006 WL 2644991, * 3 (E.D. Mich. Sept.