United States District Court, W.D. Michigan, Southern Division
BARRY B. MILLER, Petitioner,
WILLIE SMITH, Respondent.
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
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 concludes that the petition must be
dismissed because it is premature.
Barry B. Miller is incarcerated with the Michigan Department
of Corrections at Ionia Correctional Facility (ICF) in Ionia
County, Michigan. In 2014, a Kent County jury found
Petitioner guilty of possession of burglar's tools,
resisting and obstructing a police officer, and breaking and
entering a motor vehicle to steal less than $200. On December
2, 2014, the court sentenced Petitioner as a habitual
offender to 6 to 30 years of imprisonment for the
possession-of-burglar's-tools conviction, 3 years and 10
months to 15 years for the resisting-and-obstructing
conviction, and time served for the breaking-and-entering
appealed the judgment of conviction and sentence to the
Michigan Court of Appeals and the Michigan Supreme Court.
Those courts denied his appeals on May 10, 2016, and November
30, 2016, respectively.
does not identify any grounds for relief in his petition.
(Pet., ECF No. 1.) In a motion filed contemporaneously with
his petition, he asks this Court to “subpoena”
his “brief and transcripts from the Circuit Court in
Grand Rapids.” (Mot., ECF No. 3, PageID.77.) He asserts
that he has been attempting to file a motion for relief from
judgment in state court under subsection 6.500 of the
Michigan Court Rules. He claims that he is supposed to be
serving a 4-year minimum sentence. “The Court of
Appeals said it was a two-year term, ” but his
“time was doubled twice.” (Id.) In a
supplement to his petition filed on November 29, 2017, he
states that his “minimum was doubled twice, ”
contrary to the habitual-offender statute. (Suppl., ECF No.
7, PageID.86.) He also contends that he has already filed a
Rule 6.500 motion to reduce the minimum sentence from 6 years
to 4 years. He asserts that the arguments/documents in
support of his reduction can be found in “briefs and
transcripts my attorney requested, ” and that the
Michigan Court of Appeals has documents showing that his
minimum sentence, before application of the habitual-offender
statute, is 2 years.
Exhaustion of Remedies
application for relief under § 2254 is premature.
Apparently, he challenges the calculation of his sentence,
and he has filed a motion for relief from judgment in state
court raising his claim. Before asserting that claim in this
Court, however, Petitioner must exhaust his available state
court remedies. 28 U.S.C. § 2254(b)(1);
O'Sullivan v. Boerckel, 526 U.S. 838, 842
(1999). Exhaustion requires him to “fairly
present” his federal claims so that state courts have a
“fair opportunity” to consider them.
O'Sullivan, 526 U.S. at 842; Picard v.
Connor, 404 U.S. 270, 275-77 (1971). To fulfill the
exhaustion requirement, Petitioner must present his federal
claims to all levels of the state appellate system, including
the state's highest court. Duncan v. Henry, 513
U.S. 364, 365-66 (1995). “[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).
applicant has not exhausted available state remedies if he
has the right under state law to raise, by any available
procedure, the question presented. 28 U.S.C. § 2254(c).
Petitioner has at least one available procedure by which to
raise the issue he has presented. He has apparently filed a
motion for relief from judgment. If the state court denies
that motion, he can appeal that decision to the Michigan
Court of Appeals and then, if necessary, to the Michigan
when presented with a petition with unexhausted claims, the
Court must determine whether a dismissal for lack of
exhaustion would prejudice the petitioner's ability to
exhaust his claims and then return to this Court with a
fully-exhausted petition. See Palmer v. Carlton, 276
F.3d 777, 781 (6th Cir. 2002). In this case, dismissal of
Petitioner's application will not prevent him from
bringing a timely application in the future.
application is subject to the one-year statute of limitations
provided in 28 U.S.C. § 2244(d)(1). Under that
provision, the one-year limitations period runs from
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
The Michigan Supreme Court denied Petitioner's appeal on
November 30, 2016, but his judgment of conviction did not
become final until 90 days later, when the time for filing a
petition for a writ of certiorari to the United States
Supreme Court expired. See Bronaugh v. Ohio, 235
F.3d 280, 283 (6th Cir. 2000). Accordingly, absent tolling,
Petitioner would have one year from February 28, 2017, to
file his federal habeas petition. Assuming that he properly
filed a motion for relief from judgment in state court, that
motion tolled the statute of limitations, and will continue
to toll the statute of limitations for as long as that action
is pending. 28 U.S.C. § 2244(d)(2). In other words,
Petitioner's motion for relief from judgment in state
court paused the clock on the one-year deadline for filing
his federal habeas application, and will continue to do so
until the Michigan Supreme Court issues a decision on appeal.
Lawrence v. Florida, 549 U.S. 327 (2007).
Sixth Circuit has indicated that thirty days is a reasonable
amount of time for a petitioner to file a motion for
post-conviction relief in state court, and another thirty
days is a reasonable amount of time for a petitioner to
return to federal court after he has exhausted his
state-court remedies. Palmer, 276 F.3d at 781.
Petitioner has more than sixty days remaining in his
limitations period. Assuming that Petitioner diligently and
properly pursues his motion for relief from judgment in the
trial court and on appeal, and then promptly returns to this
Court after the Michigan Supreme Court issues a decision, he
is not in danger of running ...