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Hanna v. Trierweiler

United States District Court, W.D. Michigan, Southern Division

August 29, 2017



          Janet T. Neff, United States District Judge

         This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, 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 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court will dismiss the petition without prejudice for failure to exhaust available state-court remedies.


         I. Factual allegations

         Petitioner Eric Rural Hanna presently is incarcerated at the Bellamy Creek Correctional Facility. Following a jury trial in the Chippewa County Circuit Court, Petitioner was convicted of nine offenses: three counts of assault with intent to commit great bodily harm less than murder (GBH), Mich. Comp. Laws § 950.84; five counts of assault with a dangerous weapon (felonious assault), Mich. Comp. Laws § 750.82; and one count of first-degree criminal sexual conduct (CSC I), Mich. Comp. Laws § 750.520b. On January 30, 2014, the court sentenced him to a prison terms of 2 years and 10 months to 20 years on each of the GBH convictions, a term of 2 years and 1 month to 8 years on each of the felonious-assault convictions, and 16 years and 8 months to 60 years on the CSC-I conviction.

         Petitioner appealed his convictions to the Michigan Court of Appeals. In the brief filed by counsel, together with the pro per brief filed by Petitioner, the appeal raised five claims: (1) trial court error in admitting, and defense counsel erred in failing to object to, corroborative testimony of a police officer; (2) the trial court failed to properly instruct on GBH with respect to specific intent; (3) the trial court failed to properly inquire into Petitioner's request for substitution of counsel; (4) the trial court failed to give the voir dire oath to jurors, as required by Michigan statute and court rule, and counsel was ineffective in failing to object; and (5) defense counsel deprived Petitioner of his right to an impartial jury. In an unpublished opinion issued on November 19, 2015, the trial court rejected all appellate grounds and affirmed the convictions.

         Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same five issues presented to and rejected by the Michigan Court of Appeals. The supreme court denied leave to appeal on June 28, 2016.

         On July 10, 2017, Petitioner filed a motion for relief from judgment in the Chippewa County Circuit Court, raising four new grounds for relief: (1) the trial court erred when it considered misdemeanor convictions to enhance the sentence under the habitual-offender act; (2) ineffective assistance of trial and appellate counsel in not challenging the scoring of Offense Variable 3; (3) ineffective assistance of appellate counsel in failing to raise a claim of improperly added charges; and (4) ineffective assistance of trial counsel in failing to challenge the absence of African Americans in the jury pool. Apparently, the trial court has not yet decided the motion.

         Petitioner filed his habeas application on or about July 9, 2017.[1] He presents all nine grounds raised on either direct or collateral review. Petitioner acknowledges that his last four grounds are unexhausted, and he has filed a motion (ECF No. 3), seeking to hold the petition in abeyance pending completion of state-court review of those claims.

         II. Exhaustion of State Court Remedies

         Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that state courts have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a petitioner's constitutional claim. See O'Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77 (1971), cited in Duncan v. Henry, 513 U.S. 364, 365 (1995), and Anderson v. Harless, 459 U.S. 4, 6 (1982). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to all levels of the state appellate system, including the state's highest court. Duncan, 513 U.S. at 365-66; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). “[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process.” O'Sullivan, 526 U.S. at 845. The district court can and must raise the exhaustion issue sua sponte when it clearly appears that habeas claims have not been presented to the state courts. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen, 424 F.2d at 138-39.

         Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner alleges that his first five grounds for relief are exhausted. He acknowledges, however, that Grounds VI through IX remain pending in the trial court and have not been presented to the state appellate courts.

         An applicant has not exhausted available state remedies if he has the right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). Petitioner has at least one available procedure by which to raise the issues he has presented in this application: a motion for relief from judgment under Mich. Ct. R. 6.500 et seq. Under Michigan law, one such motion may be filed after August 1, 1995. Mich. Ct. R. 6.502(G)(1). Petitioner has filed his one allotted motion, but he has not awaited the state court's resolution, nor has he appealed the result to both the Michigan Court of Appeals and the Michigan Supreme Court. Therefore, the Court concludes that he has at least one available state remedy. In order to properly exhaust his claim, Petitioner must allow the Chippewa County Circuit Court to complete its review of his already-filed motion for relief from judgment. If his motion is denied by the circuit court, Petitioner must appeal that decision to the Michigan Court of Appeals and the Michigan Supreme Court. See Duncan, 513 U.S. at 365-66.

         Because Petitioner has some claims that are exhausted and some that are not, his petition is “mixed.” Under Rose v. Lundy, 455 U.S. 509, 522 (1982), district courts are directed to dismiss mixed petitions without prejudice in order to allow petitioners to return to state court to exhaust remedies. However, since the habeas statute was amended to impose a one-year statute of limitations on habeas claims, see 28 U.S.C. § 2244(d)(1), dismissal without prejudice often effectively precludes future federal habeas review. This is particularly true after the Supreme Court ruled in Duncan v. Walker, 533 U.S. 167, 181-82 (2001), that the limitations period is not tolled during the pendency of a federal habeas petition. As a result, the Sixth Circuit adopted a stay-and-abeyance procedure to be applied to mixed petitions. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). In Palmer, the Sixth Circuit held that when the dismissal of a mixed petition could jeopardize the timeliness of a subsequent petition, the district court should dismiss only the unexhausted ...

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