United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION
FOR A WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE
HONORABLE JOHN CORBETT O'MEARA UNITED STATES DISTRICT
Buckley, residing in Pontiac, Michigan,  filed a pro
se petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his conviction for domestic
violence, third offense, M.C.L. § 750.81(4). Respondent
filed an answer to the petition for a writ of habeas corpus.
As part of the answer, respondent argues that the petition is
subject to dismissal because it contains claims which have
not been properly exhausted with the state courts. In
lieu of dismissing the petition without prejudice,
this Court holds the petition in abeyance and stays the
proceedings under the terms outlined in this opinion to
permit petitioner to return to the state courts to exhaust
his additional claims. If this fails, the petition will be
dismissed without prejudice.
was convicted following a jury trial in the Oakland County
conviction was affirmed on appeal. People v.
Buckley, No. 316992, 2014 WL 4628878 (Mich. Ct. App.
Sept. 16, 2014), leave denied 497 Mich. 983 (2015).
has now filed a petition for a writ of habeas corpus, seeking
relief on the following grounds:
I. Defendant was denied this State and Federal Constitutional
Due Process Right to a fair trial where the trial court
allowed the introduction of prior acts of domestic violence
and prior statements that were irrelevant and prejudicial.
II. The prosecutor violated Mr. Buckley's Due Process
Right to a fair trial by improperly impeaching the only
defense witness with a false prior conviction.
III. Defendant was denied his right to a fair jury in
violation of the VI Amendment where at least one juror went
on the Internet and accessed information about Mr. Buckley
that was not introduced at trial, counsel was ineffective in
failing to move the juror's exclusion or for a mistrial.
U.S. Const. AM VI, XIV.
IV. Defendant's Due Process Rights to a fair trial was
[sic] violated where the trial judge abused it's [sic]
discretion in denying discovery.
argues that petitioner's habeas application is subject to
dismissal because it contains claims which have not been
properly exhausted with the state courts.
general rule, a state prisoner who seeks 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). Although exhaustion is not a
jurisdictional issue, “it is a threshold question that
must be resolved” before a federal court can reach the
merits of any claim contained in a habeas petition. See
Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009).
Therefore, each claim must be reviewed by a federal court for
exhaustion before any claim may be reviewed on the merits by
a federal court. Id. Federal district courts
normally must dismiss mixed habeas petitions which contain
both exhausted and unexhausted claims. See Pliler v.
Ford, 542 U.S. 225, 230 (2004)(citing Rose v.
Lundy, 455 U.S. 509, 510, 522 (1982)). A habeas
petitioner has the burden of proving that he or she exhausted
his or her claims with the state courts. See Caver v.
Straub, 349 F.3d 340, 345 (6th Cir. 2003).
argues that petitioner's first, third and fourth claims
were not properly exhausted with the state courts because
petitioner abandoned the claims ...