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Zahraie v. Balcarcel

United States District Court, E.D. Michigan, Northern Division

November 16, 2017

JAMSHID BAKSHI ZAHRAIE, Petitioner,
v.
ERICK BALCARCEL, Respondent.

          OPINION AND ORDER DENYING PETITIONER'S MOTION FOR A STAY, SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

          THOMAS L. LUDINGTON United States District Judge

         Petitioner Jamshid Bakshi Zahraie, a state prisoner at the Thumb Correctional Facility in Lapeer, Michigan, has filed a pro se habeas corpus petition challenging his Tuscola County convictions for racketeering, Mich. Comp. Laws § 750.159i, and related narcotics offenses. ECF No. 1. Also pending before the Court is Petitioner's motion to hold his habeas petition in abeyance and to stay his federal case while he exhausts state remedies. ECF No. 3. Petitioner's motion will be denied and the case will be dismissed without prejudice.

         I.

         Petitioner was tried before a jury in Tuscola County Circuit Court, and on March 13, 2014, the jury found him guilty of the following crimes: conducting an enterprise through a pattern of racketeering activity, Mich. Comp. Laws § 750.159i(1); unlawful possession of a controlled substance with intent to deliver, Mich. Comp. Laws §§ 333.7212(1)(e) and 333.7401(2)(b)(ii); unlawful manufacture of a controlled substance, Mich. Comp. Laws §§ 333.7212(1)(e) and 333.7401(2)(b)(ii); unlawful delivery of a controlled substance, Mich. Comp.

         Laws §§ 333.7212(1)(e) and 333.7401(2)(b)(ii); unlawful possession of a controlled substance, Mich. Comp. Laws §§ 333.7212(1)(e) and 333.7403(2)(b)(ii); and maintaining a drug house, Mich. Comp. Laws §§ 333.7405(1)(d) and 333.7406. On May 2, 2014, the trial court sentenced Petitioner, as a habitual offender, to a term of fifteen to forty years in prison for the racketeering conviction and to lesser concurrent terms for the remaining convictions.

         In his appeal as of right, Petitioner argued that: (1) the catchall language of Mich. Comp. Laws § 333.7201(1)(e)(x) is unconstitutionally vague; (2) the evidence was insufficient to sustain his conviction for conducting a criminal enterprise; (3) the trial court erred by admitting evidence of prior purchases of synthetic marijuana from Petitioner's stores; (4) he was denied due process of law because no hearing was held to determine the existence of his prior convictions; (5) his right of confrontation was violated by the admission of hearsay testimony; (6) the prosecutor committed misconduct by eliciting testimony from an expert witness that XLR-11 is a Schedule I controlled substance; and (7) the trial court's refusal to admit a laboratory report in evidence denied him the right to present a defense. The Michigan Court of Appeals rejected these arguments and affirmed Petitioner's conviction in an unpublished, per curiam opinion. See People v. Zahraie, No. 321835 (Mich. Ct. App. July 9, 2015).

         Petitioner alleges that he raised the same seven claims in an application for leave to appeal in the Michigan Supreme Court. The State Supreme Court remanded Petitioner's case to the trial court to determine whether the trial court would have imposed a materially different sentence under the sentencing procedure described in People v. Lockridge, 870 N.W.2d 502 (Mich. 2015). The State Supreme Court denied leave to appeal in all other respects because it was not persuaded to review the remaining issues. See People v. Zahraie, 875 N.W.2d 212 (Mich. 2016). On October 3, 2016, the United States Supreme Court denied Petitioner's subsequent petition for a writ of certiorari. See Zahraie v. Michigan, 137 S.Ct. 115 (2016).

         Meanwhile, on August 30, 2016, the trial court held a hearing on remand from the Michigan Supreme Court and affirmed its initial sentence in an oral decision. Petitioner appealed the trial court's ruling, but the Michigan Court of Appeals dismissed his claim of appeal for lack of jurisdiction because the trial court had not entered a final judgment or order after the hearing it held on August 30, 2016. See People v. Zahraie, No. 334853 (Mich. Ct. App. Oct. 12, 2016). On November 29, 2016, the trial court issued a written order in which it declined to re-sentence Petitioner, but entered a new claim of appeal on Petitioner's behalf and appointed appellate counsel for him.

         On March 20, 2017, while Petitioner's second appeal of his sentence was progressing through the state courts, Petitioner filed his first habeas corpus petition and a motion to stay the case pending exhaustion of state post-conviction remedies. The petition raised fourteen claims: (1) Petitioner was convicted under an unconstitutionally vague statute; (2) Petitioner was charged under an “inapplicable” statute; (3) Petitioner was denied the effective assistance of appellate counsel; (4) Petitioner was denied the effective assistance of trial counsel; (5) there was outrageous governmental conduct during the investigation; (6) there was an illegal search and seizure; (7) Petitioner was denied the right to present a complete defense; (8) insufficient evidence was presented at trial to sustain Petitioner's convictions; (9) the Government's peremptory strikes were racially motivated; (10) the trial court erroneously admitted evidence at trial; (11) the jury instructions were erroneous; (12) the trial judge was biased against Petitioner and committed misconduct; (13) the cumulative effect of these errors rendered Petitioner's trial unfair; and (14) he was entitled to re-sentencing. The Court summarily dismissed the petition without prejudice and denied the motion for a stay as unnecessary because Petitioner was not in danger of running afoul of the habeas statute of limitations. See Zahraie v. McCullik, No. 1:17-cv-10875 (E.D. Mich. Mar. 30, 2107). Petitioner moved for reconsideration, but the Court denied his motion on August 29, 2017. See id., ECF No. 7.

         On September 22, 2017, Petitioner filed the present habeas corpus petition and motion for a stay. The petition raises the same fourteen claims that Petitioner raised in his first petition. He states that he raised his first claim (arguing that the statute is unconstitutionally vague) on direct appeal, and that he raised his remaining claims for the first time in a motion for relief from judgment, which is pending before the state court. He describes his petition as a “protective” petition, which he wants the court to hold in abeyance pending exhaustion of state post-appeal remedies.

         In his motion for a stay, Petitioner alleges that, on August 16, 2017, he filed a motion for relief from judgment in the state trial court and a motion to file a memorandum of law in excess of fifty pages. Although Petitioner states that the motion for relief from judgment was filed well before the one-year statute of limitations was set to expire, he also states that the motion was not properly filed and, therefore, did not toll the limitations period. He requests a stay of this federal proceeding until he can file a proper post-conviction motion in state court.

         Petitioner further alleges that he moved to disqualify the state trial judge and that the disqualification motion remains pending before a Huron County circuit court judge. Petitioner believes that the trial judge is waiting for the Huron County judge to make a decision on Petitioner's motion for disqualification before the trial judge adjudicates Petitioner's motion to file a memorandum of law in excess of fifty pages. Petitioner speculates that the state trial judge has already denied his post-conviction motions or that his motions will be denied or rejected before he is able to correct any deficiencies in the motions. He argues that either one of these outcomes is plausible enough to justify this Court in exercising its discretion and granting his motion for a stay until he can file a proper post-conviction motion. Petitioner asserts that his unexhausted claims are potentially meritorious, that he is not engaged in any dilatory litigation tactics, and that his appellate attorney is responsible for his failure to present his unexhausted claims on direct appeal.

         II.

         As this Court explained in Petitioner's previous case, a state prisoner must exhaust the remedies available to him in the state courts before a federal court may grant relief. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to “fairly present” his federal claims to the state courts so that the 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; Duncan v. Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982); Picard v. Connor, 404 U.S. 270, 275-77 (1971). To fulfill the exhaustion requirement, a petitioner must have fairly ...


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