United States District Court, E.D. Michigan, Southern Division
ORDER DISMISSING THE HABEAS PETITION AND DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY
HONORABLE NANCY G. EDMUNDS UNITED STATES DISTRICT
Cassalle Leroy Nettles has filed a habeas corpus petition
under 28 U.S.C. § 2254. The petition challenges
Petitioner's Oakland County convictions for first-degree
murder, armed robbery, and two firearm offenses.
Petitioner's ground for relief alleges that prejudicial
evidence concerning other acts was admitted against him at
trial. The Court has determined that this claim is
procedurally defaulted. Therefore, the petition will be
charges against Petitioner arose from the fatal shooting of
Duraid Lossia during a robbery at a party store in Farmington
Hills, Michigan. At Petitioner's jury trial in Oakland
County Circuit Court,
[t]he prosecution presented substantial evidence, including
[Petitioner's] own statement, that placed [him] in the
store at the time of the robbery. Indeed, the timeline
evidence established by testimony from customers who observed
[Petitioner] and were in the store either shortly before and
shortly after the shooting, and the electronic evidence of
the times of their purchases, supported an inference that
[Petitioner] was the only person in the store at that time.
While no gun was recovered, the police did recover a holster
at [Petitioner's] home. Although [Petitioner] told the
police that he just happened to be in the store at the time
other assailants entered the store and robbed and shot the
owner, no one else was seen by other customers, or caught on
camera, during the narrow timeframe the robbery could have
been committed. . . . The prosecution also presented evidence
that [Petitioner] had parked his vehicle at a distant
location from the store and then walked to the store, which
is inconsistent with his purported reason for being there. In
addition, the clothing [Petitioner] wore into the store at
the time of the incident disappeared, [his] story changed
several times during his police interview, and the
prosecution presented evidence that [Petitioner] had
attempted to establish a false alibi.
People v. Nettles, No. 324408, 2016 WL 1125931, at
*2 (Mich. Ct. App. Mar. 22, 2016).
jury found Petitioner guilty of first-degree (felony) murder,
Mich. Comp. Laws § 750.316(1)(b), armed robbery, Mich.
Comp. Laws § 750.529, felon in possession of a firearm,
Mich. Comp. Laws § 750.224f, and three counts of felony
firearm, Mich. Comp. Laws § 750.227b. On October 20,
2014, the trial court sentenced Petitioner as a habitual
offender to concurrent terms of life imprisonment for the
murder, thirty-seven to sixty years for the armed robbery,
and seventy-six months to fifty years for being a felon in
possession of a firearm. The court sentenced Petitioner to a
consecutive sentence of two years in prison for the
appeal as of right, Petitioner raised claims regarding the
sufficiency of the evidence adduced at trial, the admission
of “other acts” evidence, the prosecutor's
closing argument, and trial counsel's failure to object
to the prosecutor's conduct. The Michigan Court of
Appeals found no merit in Petitioner's claims and
affirmed his convictions in an unpublished, per
curiam decision on March 22, 2016. See Nettles,
2016 WL 1125931. Petitioner did not seek further review of
his convictions in state court, and, under Michigan Court R.
7.305(C)(2), he had only fifty-six days, or until May 17,
2016, to file an application for leave to appeal in the
Michigan Supreme Court.
15, 2017, Petitioner filed his habeas corpus petition through
counsel. His sole ground for relief is that the admission of
minimally probative, but exceedingly prejudicial,
“other acts” evidence deprived him of a fair
21, 2017, the Court ordered Petitioner to show cause why his
petition should not be dismissed on the basis that his ground
for relief is unexhausted or procedurally defaulted. In a
response to the Court's order, Petitioner argues that his
claim is not procedurally defaulted and that his petition
should not be dismissed for failure to exhaust state remedies
because he raised his claim in the Michigan Court of Appeals
and has no state remedy left to seek.
doctrine of exhaustion of state remedies requires state
prisoners to present their claims to the state courts before
raising the claims in a federal habeas corpus petition.
See 28 U.S.C. § 2254(b)(1); O'Sullivan
v. Boerckel, 526 U.S. 838, 839 (1999). This requirement
is satisfied if the prisoner “invok[es] one complete
round of the State's established appellate review
process, ” including a petition for discretionary
review in the state supreme court “when that review is
part of the ordinary appellate review procedure in the
State.” O'Sullivan, 526 U.S. at 845, 847.
Thus, to properly exhaust state remedies, prisoners must
fairly present the factual and legal basis for each of their
claims to the state court of appeals and to the state supreme
court before raising the claims in a habeas corpus petition.
Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir.
admits that he did not seek leave to appeal his convictions
in the Michigan Supreme Court. See Pet. for Writ of
Habeas Corpus, ECF No. 1, ¶¶ 9(g) and 10.
Therefore, he has not exhausted state remedies for his claim
by raising the claim in both the Michigan Court of Appeals
and the Michigan Supreme Court.
exhaustion requirement, however, “refers only to
remedies still available at the time of the federal petition,
” Engle v. Isaac, 456 U.S. 107, 125 n. 28
(1982), and, as noted above, Petitioner missed the deadline
for filing an application for leave to appeal in the Michigan
Supreme Court. Therefore, his claim must be treated as
exhausted, but procedurally defaulted, unless he can
demonstrate cause and prejudice for the ...