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Taylor v. Burt

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

October 26, 2017

JOHNNY TAYLOR, Petitioner,
v.
S.L. BURT, Respondent.

          OPINION

          HONORABLE ROBERT J. JONKER CHIEF 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.

         Discussion

         I. Factual allegations

         On December 26, 2013, a stocky male in a green jacket confronted clerk Joel Thomas at a Jackson, Michigan, Admiral Gas Station.[1] The man punched Thomas, forced him at gunpoint to yield the contents of the register, and then left the scene. Moments later, Jackson City Police arrived. They followed the robber's footprints in the snow to a home at 1303 Williams Street.

         When police officers knocked on the front door of the residence they were greeted by Heather Banks. She informed the officers that she and her children resided at the home, and that a few minutes earlier a man she knew as “Johnny”-Petitioner-had knocked on the door. She had let Johnny in and, when she told him that the police were outside, Johnny went to hide in a back bedroom.

         Petitioner refused to exit the bedroom so the officers deployed K-9 Officer Nero. Nero found Petitioner underneath some clothes in the bedroom closet and locked on to Petitioner's forearm. Petitioner then left the closet and was taken into custody. The police officers testified that Petitioner was fully-clothed when he was apprehended and that he was wearing a green jacket. Officers then searched the bedroom. They found a black BB pistol, $342.00 (including a $2.00 tracer bill from the gas station), and a pair of glasses. After his arrest, Petitioner noted that he needed, but did not have, his reading glasses.

         Petitioner was charged with armed robbery, Mich. Comp. Laws § 750.529. On May 14, 2014, he was tried before a Jackson County Circuit Court jury. Joel Thomas was not able to identify Petitioner as the robber, because the robber had concealed his face with the jacket. Nonetheless, the jury found Petitioner guilty after forty minutes of deliberation. Petitioner was sentenced as a habitual offender-fourth offense, Mich. Comp. Laws § 769.12, to a term of imprisonment of 20 to 50 years.

         Petitioner, with the assistance of counsel, directly appealed his conviction to the Michigan Court of Appeals raising one issue: ineffective assistance of trial counsel. (Pet'r's Appeal Br., ECF No. 1-5.) Petitioner's appellate counsel filed a motion to remand for an evidentiary hearing regarding counsel's ineffective assistance. (Pet'r's Mot. to Remand, ECF No. 1-2.) The court of appeals denied that relief because “Defendant-appellant has not demonstrated that further factual development of the record or an initial ruling by the trial court is necessary at this time in order for this Court to review the issues on appeal.” People v. Taylor, No. 322629 (Mich. Ct. App. May 29, 2015). Petitioner filed a Standard 4 brief[2] raising additional instances of ineffective assistance of trial counsel. (Pet'r's Std. 4 Br., ECF No. 1-6.) The Michigan Court of Appeals affirmed Plaintiff's conviction in an unpublished opinion issued November 11, 2015. (Mich. Ct. App. Op., ECF No. 1-7.)

         Petitioner then filed a pro per application for leave to appeal in the Michigan Supreme Court raising the ineffective assistance of trial counsel issue he had raised in the intermediate appellate court and a new issue: ineffective assistance of appellate counsel. (Pet'r's Appl. for Leave to Appeal, ECF No. 1-7, PageID.173-196.) Specifically, Petitioner argued that his appellate counsel rendered constitutionally ineffective assistance when she filed his motion to remand late. The Supreme Court denied Petitioner's application by order entered June 28, 2016. (Mich. Ord., ECF No. 1-8, PageID.237.)

         Petitioner did not file a petition for certiorari in the United States Supreme Court. Instead, he waited almost a year and then filed his habeas corpus petition in this Court. The habeas petition raises two issues: ineffective assistance of trial counsel and ineffective assistance of appellate counsel. The instances of trial counsel's ineffectiveness raised by Petitioner here are the same instances he raised in the Michigan appellate courts. However, Petitioner has added several new instances of ineffective assistance by his appellate counsel, instances that he never raised in the Michigan appellate courts.[3]

         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). There is no question that Petitioner has exhausted his first habeas issue regarding ineffective assistance of trial counsel by raising it at both levels of Michigan's established appellate review process. The same is not true, however, with respect to Petitioner's claim that his appellate counsel rendered constitutionally ineffective assistance. With respect to Petitioner's claim that appellate counsel was ineffective for filing the motion to remand too late, that claim was raised for the first time in Petitioner's pro per application for leave to appeal to the Michigan Supreme Court. (Pet., ECF No. 1, PageID.20) (“Defendant raised ...


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