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Norris v. Harry

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

September 29, 2017

Michael Norms, Petitioner,
Shirlee Harry, Respondent.



         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 concludes that Petitioner has failed to exhaust his available state-court remedies as to all claims raised in the petition. Because Petitioner has fewer than 60 days remaining in the limitations period for filing a habeas petition, the Court will not dismiss the action at this time, pending Petitioner's compliance with the further directions of this Court set forth in this opinion and attached order.


         I- Factual allegations

         Petitioner Michael Norris is presently incarcerated with the Michigan Department of Corrections at the Earnest C. Brooks Correctional Facility in Muskegon Heights, Michigan. Plaintiff is serving five concurrent life sentences (two for felony murder, MICH. COMP. L. § 750.316(b), two for assault with intent to commit murder, Mich. Comp. L. § 750.83, and one for assault with intent to rob while armed, Mich. Comp. L. § 750.89) consecutive to five concurrent two-year sentences for felony firearm, MlCH. Comp. L. § 750.227b(1). Petitioner was found guilty of the offenses by a jury on February 20, 2014, following a nine-day trial. The Kent County Circuit Court sentenced Petitioner on March 11, 2014, as a habitual offender-fourth offense, Mich. Comp. L. § 769.12.

         With the assistance of counsel, Petitioner directly appealed his convictions to the Michigan Court of Appeals, raising one issue: "Defendant was denied a fundamentally fair trial by improper prosecutor argument during closing argument, including (1) a civic duty argument and inflammatory appeal to the jury (2) shifting the burden of proof and (3) vouching/bolstering by the prosecutor of witness credibility." (Pet'r's Br., ECF No. 2-3, PageID.53.) By unpublished opinion dated June 9, 2015, the court of appeals rejected Petitioner's arguments and affirmed his convictions. (Mich. Ct. App. Op., ECF No. 2-1, PageID.44-49.)

         Petitioner submitted an application for leave to appeal the court of appeals decision in the Michigan Supreme Court. Petitioner represents that he raised the same issue in the supreme court that he raised in the court of appeals. The Michigan Supreme Court denied leave by order entered June 28, 2016. People v. Norris, 880 N.W.2d 558 (Mich. 2016).

         Petitioner did not file a petition for certiorari in the United States Supreme Court. (Pet., ECF No. 1, PageID.3.) Instead, he filed a petition in this Court. The initial petition was signed by someone other than Petitioner on the authority of a power of attorney. (Pet., ECF No. 1, PageID.14.) According to that individual, the petition was placed in the prison mailing system on April 14, 2017, (id.) and the return address suggests it was mailed from the correctional facility where Petitioner is incarcerated. (Priority Mail Envelope, ECF No. 1, PageID.15) The mailing envelope further reveals, however, that it was mailed from zip code 49426, Hudsonville, Michigan. Under the circumstances, it appears to the Court that the document was mailed on July 22, 2017, by Petitioner's power of attorney, Paula Creswell, not by Petitioner.

         Under Sixth Circuit precedent, an application filed by a prisoner is deemed filed when handed to prison authorities for mailing. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). In the Sixth Circuit, the date the prisoner signs the document is deemed to be the date of handing it to prison authorities. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (citing Goins v. Saunders, 206 F.App'x 497, 498 n.l (6th Cir. 2006)). The date of signing is not material, however, when the document is filed by someone other than the prisoner. In the federal courts, the rationale for applying the mailbox rule, see Houston v. Lack, 487 U.S. 266, 274-276 (1988), simply does not apply where a prisoner is represented by counsel. See Id. at 275 ("a civil litigant who chooses to mail a notice of appeal assumes the risk of untimely delivery and filing ... a pro se prisoner has no choice but to hand his notice over to prison authorities ... ."); Cousin v. Lensing, 310 F.3d 843, 847 (5th Cir.2002) ("The inability of an unrepresented prisoner litigant to exercise control over the filing of his pleadings, and his dependence on prison officials for such filing, supports a flexible approach to the application of deadlines.); Rutledge v.United States, 230 F.3d 1041, 1052 (7th Cir. 2000) ("[A] prisoner represented by counsel can have that attorney file whatever motions or notices the prisoner desires, and so does not need to rely on prison authorities."); Nichols v. Bowersox, 172 F.3d 1068, 1074 (8th Cir. 1999) ("The prison mailbox rule traditionally and appropriately applies only to pro se inmates who may have no means to file legal documents except through the prison mail system."); Stillman v. LaMarque, 319 F.3d 1199, 1201 (9th Cir. 2003) ("[T]o benefit from the mailbox rule . . . the prisoner must be proceeding without assistance of counsel . . .[and] must deliver the petition to prison authorities for forwarding to the court"); Williams v. Russo, 636 F.App'x 527, 531(11th Cir. 2016) ("The mailbox rule only applies to (1) court filings (2) submitted by pro se prisoners.").

         Because the petition was submitted by a person other than Petitioner and was not dependent on the prison mailing system, the prison mailbox rule should not apply. The relevant date, therefore, is the date the petition was received by the Court, July 25, 2017.

         The petition as originally filed, and as amended on August 22, 2017, raises two issues: the issue Petitioner raised in the Michigan appellate courts; and a challenge to the sufficiency of the evidence used to convict Petitioner. (Pet., ECF No. 1, PageID.7; Am. Pet., ECF No. 7, PageID.111.) Petitioner never raised the sufficiency issue in the Michigan appellate courts. (Pet, ECF No. 1, PageID.2-3; Am. Pet, ECF No. 7, PageID.106-107.)

         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); i>'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to "fairly prdsent" 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 Id. 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). The petitions reveal that Petitioner has ...

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