United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING PETITIONER'S
APPLICATION FOR A WRIT OF HABEAS CORPUS, DENYING A
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN
FORMA PAUPERIS ON APPEAL
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
a pro se habeas case brought pursuant to 28 U.S.C. §
2254. Petitioner pled guilty to the manufacture or delivery
of 50 to 449 grams of cocaine, two counts of the manufacture
or delivery of less than 50 grams of cocaine, and possession
of marijuana in Oakland County Circuit Court and was
sentenced to a lengthy prison term. Petitioner raises claims
concerning his opportunity for allocution at sentencing, the
validity of his sentences, and the voluntariness of his plea.
For the reasons stated below, the Court shall dismiss the
petition without prejudice, decline to issue a certificate of
appealability, and dent leave to proceed in forma pauperis on
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); Rust v. Zent, 17 F.3d 155, 160 (6th Cir.
1994). To satisfy the exhaustion requirement, 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). The claims must also be presented to the state courts
as federal constitutional issues. Koontz v.
Glossa, 731 F.2d 365, 368 (6th Cir. 1984). In Michigan,
each issue must be presented to both the Michigan Court of
Appeals and the Michigan Supreme Court to satisfy the
exhaustion requirement. See 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. See Rust, 17 F.3d at
present case, the record indicates that the petitioner raised
his allocution claim before the Michigan Court of Appeals and
the Michigan Supreme Court. However, he did not raise his
sentencing and plea voluntariness claims on direct appeal
before the Michigan Court of Appeals and first raised those
claims before the Michigan Supreme Court. Presenting new
issues for the first time before a state supreme court on
discretionary review does not amount to a “fair
presentation” of those claims to the state courts for
exhaustion purposes. Castille v. Peoples, 489 U.S.
346, 351 (1989). Petitioner has thus failed to properly
exhaust all of his claims in the state courts before seeking
federal habeas review.
has an available avenue for relief in the state court system
such that his pursuit of state court remedies would not be
futile. For example, he may file a motion for relief from
judgment with the state trial court under Michigan Court Rule
6.500 et seq. and seek further review in the state appellate
courts as necessary. The unexhausted claims should be
addressed to, and properly considered by, the state courts in
the first instance.
a federal district court should dismiss a “mixed”
habeas petition, that is, one containing both exhausted and
unexhausted claims, “leaving the prisoner with the
choice of returning to state court to exhaust his claims or
amending and resubmitting the habeas petition to present only
exhausted claims to the district court.” Rose v.
Lundy, 455 U.S. 509, 510 (1982). A federal district
court has discretion to stay a mixed habeas petition to allow
a petitioner to present his unexhausted claims to the state
courts in the first instance and then return to federal court
on a perfected petition. See Rhines v. Weber, 544
U.S. 269, 276 (2005). Stay and abeyance, however, is
available only in “limited circumstances.”
Id. at 277.
present case, petitioner neither requests a stay nor shows
the need for a stay. First, the one-year statute of
limitations, see 28 U.S.C. § 2244(d), does not
pose a problem for the petitioner if he pursues his state
court remedies promptly. Second, while there is no indication
that petitioner has engaged in “intentionally dilatory
tactics, ” he neither alleges nor establishes good
cause for failing to fully exhaust all of his claims in the
state courts before seeking relief in this Court. Third,
based upon the current record, the Court cannot determine
whether or not the petitioner's unexhausted claims are
“plainly meritless.” In these circumstances, a
stay is unwarranted and a non-prejudicial dismissal of the
petition is appropriate. Accordingly, IT IS ORDERED that
petitioner's application for a writ of habeas corpus is
dismissed without prejudice. If petitioner wishes to delete
his unexhausted claims and proceed only on the his fully
exhausted claim, he may move to re-open this case and amend
his petition to proceed only on the exhausted claim within 30
days of the filing date of this order. The Court makes no
determination as to the merits of his claims.
FURTHER ORDERED that no certificate of appealability shall
issue because petitioner has not made a substantial showing
of the denial of a constitutional right.
FURTHER ORDERED that petitioner may not proceed in forma
pauperis on appeal as an appeal, as any appeal in this ...