United States District Court, E.D. Michigan, Northern Division
ORDER DIRECTING PETITIONER TO INFORM THE COURT HOW HE
WANTS TO PROCEED WITH HIS “MIXED”
L. LUDINGTON UNITED STATES DISTRICT JUDGE.
Michael Demond Lawson, a state prisoner at the Carson City
Correctional Facility in Carson City, Michigan, recently
filed a pro se habeas corpus petition challenging
his state convictions for second-degree murder, see
Mich. Comp. Laws § 750.317, and assault with intent to
commit murder, Mich. Comp. Laws § 750.83. Petitioner
argues that his right to confrontation was denied, he did not
receive effective assistance of trial counsel, was convicted
despite insufficient evidence, and was denied a fair trial
when the trial judge refused to recuse himself. Because
Petitioner failed to exhaust state remedies for his fourth
claim, the Court will direct him to inform the Court how he
wants to proceed.
was tried with his co-defendant in Wayne County Circuit
Court. As noted above, the jury found Petitioner guilty of
second-degree murder and assault with intent to commit
murder. The trial court sentenced Petitioner as a habitual
offender to prison for 37 ½ to 75 years. Petitioner
raised his first three habeas claims regarding his right of
confrontation, ineffective assistance of counsel, and the
sufficiency and weight of the evidence in the Michigan Court
of Appeals. The Court of Appeals affirmed his convictions in
a per curiam opinion, but remanded his case for
further consideration of his sentence. See People v.
Lawson, No. 326542, 2016 WL 5930110 at *1, *6-*13 (Mich.
Ct. App. Oct. 11, 2016) (unpublished). Petitioner states that
he raised the same claims in the Michigan Supreme Court and
also sought permission to add a new claim regarding the trial
judge's refusal to recuse himself. On July 7, 2017, the
Michigan Supreme Court granted Petitioner's request to
consider new issues, but denied his application for leave to
appeal because it was not persuaded to review the questions
presented to it. See People v. Lawson, 897 N.W.2d
175 (Mich. 2017).
August 28, 2017, Petitioner filed his habeas corpus petition.
He alleges as grounds for relief that (1) his right of
confrontation was violated when the trial court permitted the
prosecution to admit a missing witness's testimony from
the preliminary examination, (2) trial counsel was
ineffective for failing to move for separate juries despite
antagonistic and irreconcilable defense theories, (3) there
was insufficient evidence to support his convictions, and the
jury's verdict was against the great weight to the
evidence, and (4) the trial judge abused his discretion by
not recusing himself on the basis of judicial bias.
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.” O'Sullivan, 526 U.S. at 845.
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.
indicates in his habeas petition that he exhausted state
remedies for his first three habeas claims by raising those
claims in the Michigan Court of Appeals and in the Michigan
Supreme Court. However, Petitioner explains that he raised
his fourth claim only in the Michigan Supreme Court, and the
submission of a new claim to the state's highest court on
discretionary review does not satisfy the exhaustion
requirement. Castille v. Peoples, 489 U.S. 346, 351
(1989). Thus, the petition consists of three exhausted claims
and one unexhausted claim.
federal district court, generally speaking, may not grant the
writ on a ‘mixed' petition, one containing claims
that the petitioner has pressed before the state courts and
claims that he has not.” Harris v. Lafler, 553
F.3d 1028, 1031 (6th Cir. 2009) (citing 28 U.S.C. §
2254(b)(1)(A) and Rhines v. Weber, 544 U.S. 269,
273-74 (2005)); see also Rose v. Lundy, 455 U.S.
509, 510 (1982) (noting that “the exhaustion rule in 28
U.S.C. §§ 2254(b), (c) requires a federal district
court to dismiss a petition for a writ of habeas corpus
containing any claims that have not been exhausted in the
state courts” and holding “that a district court
must dismiss ‘mixed petitions, ' leaving the
prisoner with the choice of returning to state court to
exhaust his claims or of amending or resubmitting the habeas
petition to present only exhausted claims to the district
court”). Furthermore, it appears that Petitioner may
have an available state remedy to exhaust, namely, a motion
for relief from judgment under Michigan Court Rule 6.502.
When faced with a mixed petition, . . . the district court
has four options: (1) stay the entire petition; (2) dismiss
the entire petition without prejudice; (3) deny the entire
petition on the merits; or (4) dismiss the unexhausted claims
and proceed with the exhausted ones.
Swanson v. DeSantis, 606 F.3d 829, 831 (6th Cir.
2010) (citing Harris, 553 F.3d at 1031-32).
Court is not inclined to stay the habeas petition (option
one) because the one-year statute of limitations for habeas
petitions only recently began to run,  and it will stop
running if Petitioner files a proper application for
post-conviction review in state court. 28 U.S.C. §
2244(d)(2). Further, without the benefit of the state-court
record or an answer to the habeas petition, the Court is
unable to say whether the entire petition should be denied on
the merits (option three).
it is ORDERED that Petitioner is
DIRECTED to inform the Court whether (1) he
wants the Court to dismiss his petition without prejudice
(option two) or (2) whether he prefers to voluntarily dismiss
his unexhausted fourth claim so that he may present his
fourth claim to the state court and have the Court address
his first three claims (option four). Any failure to comply