United States District Court, E.D. Michigan, Southern Division
Sean W. Quigley, Petitioner,
Thomas Mackie, Respondent.
R. Grand Mag. Judge
OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
E. LEVY United States District Judge
a habeas case under 28 U.S.C. § 2254. Michigan prisoner
Sean Quigley (“Petitioner”) was convicted of
terrorism, Mich. Comp. Laws § 750.543f, unlawful
imprisonment, Mich. Comp. Laws § 750.349(1)(b), making a
terrorist threat or false report of terrorism, Mich. Comp.
Laws § 750.543m, and making a false report of a crime (a
bomb threat), Mich. Comp. Laws § 750.411a(2)(b),
following a jury trial in the Wayne County Circuit Court. In
2014, he was sentenced to concurrent terms of ten to fifteen
years of imprisonment for terrorism and unlawful
imprisonment, ten to twenty years of imprisonment for making
a terrorist threat, and two to four years of imprisonment for
making a false bomb threat.
filed an appeal of right with the Michigan Court of Appeals,
raising claims concerning the applicability of the Michigan
Anti-Terrorism Act, the sufficiency of the evidence, the
scoring of certain offense variable of the state sentencing
guidelines, and the restitution order. The court affirmed in
part, reversed in part (granting relief on one of the
sufficiency of the evidence claims and the restitution
claim), and remanded for resentencing and a determination of
the appropriate restitution amount. People v.
Quigley, No. 322482, 2016 Mich.App. LEXIS 89 (Mich. Ct.
App. Jan. 19, 2016). Petitioner then filed an application for
leave to appeal with the Michigan Supreme Court, which was
denied in a standard order. People v. Quigley, 499
Mich. 985 (2016).
filed his pro se federal habeas petition on April
18, 2017. (Dkt. 1.) He raises claims concerning the jury
instructions, the admission of his confession, the
effectiveness of trial counsel, judicial bias, the
non-disclosure of evidence, the use of perjured testimony,
and judicial misconduct and jury bias. (Id. at 3-7.)
after a habeas petition is filed, the Court must undertake a
preliminary review of the petition to determine whether
“it plainly appears from the face of the petition and
any exhibits annexed to it that the petitioner is not
entitled to relief in the district court.” Rule 4,
Rules Governing § 2254 Cases; see also 28
U.S.C. § 2243. A petition for a writ of habeas corpus
must set forth facts that give rise to a cause of action
under federal law or it may be summarily dismissed. See
Perez v. Hemingway, 157 F.Supp.2d 790, 796 (E.D. Mich.
2001). Any habeas petition that appears legally insufficient
on its face may be dismissed. McFarland v. Scott,
512 U.S. 849, 856 (1994); see Carson v. Burke, 178
F.3d 434, 436 (6th Cir. 1999) (a habeas corpus petition may
be summarily dismissed if it plainly appears from the face of
the petition or the exhibits that are attached to it that the
petitioner is not entitled to federal habeas relief).
the habeas petition must be dismissed because it is
premature. Petitioner's state convictions and sentences
are not yet final, given that the Michigan Court of Appeals
reversed in part and remanded his case to the state trial
court for re-sentencing. See Burton v. Stewart, 549
U.S. 147, 156-57 (2007) (ruling that when a state court
affirms a conviction on direct review, but remands for
resentencing, the judgment of conviction does not become
final, for purposes of the statute of limitations, until the
completion of direct review from the new judgment of
sentence); see also Rashad v. Lafler, 675 F.3d 564,
567-78 (6th Cir. 2012). Petitioner neither alleges nor
establishes that he has been re-sentenced. Moreover, state
records indicate that he has not yet been re-sentenced.
See People v. Quigley, No. 13-009245-01-FC (Wayne
Co. Cir. Ct. Register of Actions); Offender Profile, Michigan
Offender Tracking Information System (“OTIS”),
otis2profile.aspx?mdocNumber=934431. Petitioner cannot
proceed on federal habeas review until his convictions and
sentences are finalized in the state courts.
Petitioner has been re-sentenced, he cannot proceed on habeas
under 28 U.S.C. §2254 without first exhausting his
available state court remedies. See O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate
prisoners must give the state courts one full fair
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process.”). For a prisoner in Michigan, each
issue must also be raised before the Michigan Court of
Appeals and the Michigan Supreme Court to satisfy the
exhaustion requirement. Wagner v. Smith, 581 F.3d
410, 414 (6th Cir. 2009) (citing Hafley v. Sowders,
902 F.2d 480, 483 (6th Cir. 1990)). While the exhaustion
requirement is not jurisdictional, a “strong
presumption” exists that a prisoner must exhaust
available state court remedies before seeking federal habeas
review. Granberry v. Greer, 481 U.S. 129, 131,
134-35 (1987); Wagner, 581 F.3d at 415 (citing
Harris v. Lafler, 553 F.3d 1028, 1031 (6th Cir.
2009)). Because Petitioner has not met his burden of proving
exhaustion, the petition must be dismissed at this time.
See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
the petition is DISMISSED WITHOUT PREJUDICE as premature
because Petitioner's state convictions and sentences are
not yet final and also because Petitioner has not shown that
he has exhausted his claims in state court. Before Petitioner
may appeal this decision, a certificate of appealability must
issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R.
App. P. 22(b).
no reasonable jurists could debate the correctness of the
Court's procedural ruling, a certificate of appealability
is DENIED. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000); see 28 U.S.C. § 2253(c)(2). An appeal
also could not be taken in good faith, so leave ...