United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE MOTION TO STAY,
SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS,
DENYING THE MOTION TO CONSOLIDATE, DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE.
is presently incarcerated at the Lakeland Correctional
Facility in Coldwater, Michigan. In his application for a
writ of habeas corpus, filed pro se under 28
U.S.C.§ 2241, petitioner challenges his conviction for
several counts of first-degree criminal sexual conduct,
several counts of second-degree criminal sexual conduct, and
being a second habitual offender. Petitioner has also filed a
motion to hold the petition in abeyance so that he can
complete post-conviction proceedings in the state courts, in
which he is attempting to exhaust six of the twenty claims
included in his petition.
was convicted following a jury trial in the Jackson County
Circuit Court. His conviction was affirmed on appeal.
People v. Stevens, 2016 WL 7333391 (Mich. Ct. App.
Dec. 15, 2016); lv. den. __ N.W.2d__2017 WL 3175015
(Mich. July 25, 2017).
filed his habeas petition with this Court a few weeks ago. He
seeks habeas relief on twenty grounds. By his own admission,
his last six claims have yet to be exhausted because they
were not raised on his appeal of right and are being raised
for the first time in a post-conviction motion for relief
from judgment still pending before the Jackson County Circuit
instant petition must be dismissed without prejudice, because
the petition contains claims that have yet to be exhausted
with the state courts.
general rule, a state prisoner seeking federal habeas relief
must first exhaust his or her 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). To exhaust a claim for federal habeas review,
a petitioner must present it to both state appellate courts,
even where the state's highest court provides only
discretionary review. See Regan v. Hoffner, 209
F.Supp.2d 703, 710, n.3 (E.D. Mich. 2002) (citing
O'Sullivan v. Boerckel, 526 U.S. 838, 845-47
(1999)). Although exhaustion is not a jurisdictional matter,
“it is a threshold question that must be
resolved” before the Court considers the petition.
See Wagner v. Smith, 581 F.3d 410, 415 (6th Cir.
2009). Federal district courts must dismiss mixed habeas
petitions which contain both exhausted and unexhausted
claims. See Pliler v. Ford, 542 U.S. 225, 230
acknowledges that his last six claims are unexhausted because
they were not presented on his appeal of right with the
Michigan Court of Appeals or his application for leave to
appeal to the Michigan Supreme Court, but are raised for the
first time in his post-conviction motion. A habeas petition
should be denied on exhaustion grounds where a state
post-conviction motion remains pending in the state courts.
Juliano v. Cardwell, 432 F.2d 1051, 1051 (6th Cir.
1970). Moreover, should the trial court deny petitioner's
post-conviction motion, he will have to exhaust his remedies
in the state appellate courts. See Nasr v. Stegall,
978 F.Supp. 714, 717 (E.D. Mich. 1997).
the 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), this case presents no exceptional or
unusual circumstances that justify staying the case rather
than dismissing it without prejudice. The Michigan Supreme
Court denied petitioner's application for leave to appeal
on July 25, 2017. Because petitioner did not seek a writ of
certiorari with the U.S. Supreme Court, his judgment was set
to become final on October 23, 2017. See Jimenez v.
Quarterman, 555 U.S. 113, 119 (2009); Grayson v.
Grayson, 185 F.Supp.2d 747, 750 (E.D. Mich. 2002); 28
U.S.C. § 2244(d)(1). But his post-conviction motion
tolls the limitations period until he completes the state
court appeals process. See Carey v. Saffold, 536
U.S. 214, 220-21 (2002); Matthews v. Abramajtys, 319
F.3d 780, 787-88 (6th Cir. 2003). Because petitioner has now
tolled the period of limitations, he will not be prejudiced
if his habeas petition was dismissed without prejudice. Thus,
a stay of the proceedings is not necessary or appropriate to
preserve the federal forum for petitioner's claims.
See Schroeder v. Renico, 156 F.Supp.2d 838, 845-46
(E.D. Mich. 2001). Accordingly, the Court will dismiss his
petition without prejudice.
Court will also deny a certificate of appealability. To
obtain a certificate of appealability, a prisoner must make a
substantial showing of the denial of a constitutional right.
28 U.S.C. § 2253(c)(2). To demonstrate this denial, the
applicant is required to show that reasonable jurists could
debate whether the petition should have been resolved in a
different manner, or that the issues presented were adequate
to deserve encouragement to proceed further. Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). The Court
declines to issue a certificate of appealability, because
“jurists of reason” would not debate whether this
Court's procedural ruling was correct. See Colbert v.
Tambi, 513 F.Supp.2d 927, 939 (S.D. Ohio 2007). The
Court will also deny petitioner leave to appeal in forma
pauperis, because the appeal would be frivolous.
Dell v. Straub, 194 F.Supp.2d 629, 659 (E.D. Mich.
IT IS ORDERED that the petitioner's application for a
writ of habeas ...