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
MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE
Way, a Michigan inmate incarcerated at the Huron Valley
Women's Complex, has filed this petition for a writ of
habeas corpus under 28 U.S.C. § 2254. Petitioner pled
guilty in the Antrim Circuit Court to one count of failing to
pay child support. Mich. Comp. Laws § 750.165.
Petitioner was sentenced on January 12, 2015, to 32 months to
48 months' imprisonment.
petition raises two claims: (1) the trial court did not
calculate or formulate any sentencing guidelines, and (2)
trial counsel was ineffective for failing to advise
Petitioner that if she accepted the plea bargain she could be
sentenced to any term decided by the trial court.
Court will summarily dismiss the petition without prejudice
because Petitioner failed to exhaust her state court remedies
with respect to her second claim. The Court will also deny a
certificate of appealability and deny permission to appeal in
forma pauperis. After Petitioner presents her second claim to
the state courts by filing a motion for relief from judgment
in the Antrim Circuit Court and then appeals any adverse
decision to both the Michigan Court of Appeals and Michigan
Supreme Court, she may return and file a new federal petition
for a writ of habeas corpus.
to the allegations in the petition, and as confirmed by the
state court website, following Petitioner's plea and
sentence she filed an application for leave to appeal in the
Michigan Court of Appeals. Petitioner asserts that her
appellate counsel raised a single claim regarding the trial
court's failure to calculate the sentencing guideline.
See Pet., at 7. The Michigan Court of Appeals denied relief
by order dated September 21, 2016. People v. Way,
No. 333645 (Mich. Ct. App. Sept. 21, 2016). Petitioner then
filed an application for leave to appeal in the Michigan
Supreme Court, again raising her sentencing claim. The
Michigan Supreme Court denied the application by standard
order. People v. Way, No. 154430 (Mich. Sup.Ct.
January 24, 2017).
indicates that she has not yet filed a motion for relief from
judgment in the trial court. Pet., at 7.
the filing of a habeas corpus petition, the Court must
promptly examine the petition to determine “[i]f it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief . . .”
Rule 4, Rules Governing Section 2254 Cases. If the Court
determines that the petitioner is not entitled to relief, the
Court shall summarily dismiss the petition. McFarland v.
Scott, 512 U.S. 849, 856 (1994) (“Federal courts
are authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face”).
federal court may not grant habeas relief to a state prisoner
unless the prisoner first exhausts state remedies for her
claims. 28 U.S.C. § 2254(b)(1); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). The exhaustion
requirement is satisfied if a prisoner invokes one complete
round of the state's established appellate review
process. Boerckel, 526 U.S. at 847. To properly
exhaust state remedies, therefore, a habeas petitioner must
present each of her federal issues to the state court of
appeals and to the state supreme court before raising the
claims in a federal habeas corpus petition. Wagner v.
Smith, 581 F.3d 410, 414 (6th Cir. 2009).
Petitioner indicates that she did not present her second
habeas claim to the Michigan appellate courts on direct
review. 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 Petitioner to return to state court to present her
unexhausted claims to the state courts. Petitioner has an
available state court remedy. She may still file for state
post-conviction review under Michigan Court Rule 6.501 et
seq. by filing a motion for relief from judgment in the trial
court, and then if the motion is denied, she may appeal that
decision through the state appellate courts.
Petitioner is not in danger of running afoul of the one-year
statute of limitations. See 28 U.S.C. § 2244(d).The
starting point for the one-year deadline was 90 days after
the Michigan Supreme Court denied relief, or on April 24,
2017. See 28 U.S.C. § 2244(d)(1)(a). And the time during
which Petitioner's state post-conviction proceeding is
pending in the state courts will not count against the
one-year time limit. See § 2244(d)(2). That is,
approximately one-month has passed on Petitioner's
one-year time limit, and the time remaining on the period
will not run (that is, the clock will be stopped) from the
time she files her motion for relief from judgment until the
date the Michigan Supreme Court denies relief. If Petitioner
acts with reasonable diligence in filing her motion for
relief from judgment, she should have ample time to file a
new federal habeas petition after she completes state review.
the Court will dismiss the petition without prejudice because
Petitioner has failed to exhaust her state court ...