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Kleinert v. Bauman

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

December 21, 2017

ALEX THOMAS KLEINERT, Petitioner,
v.
CATHERINE S. BAUMAN, Respondent,

          OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING CASE.

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE

         Alex Kleinert, (“petitioner”), confined at the Alger Maximum Correctional Facility in Munising, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction for first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(2)(b).

         For the reasons stated below, in lieu of dismissing the petition, the Court holds the petition in abeyance and stays the proceedings under the terms outlined below in the opinion to permit petitioner to return to the state courts to exhaust his claims, failing which the petition shall be dismissed without prejudice. The Court will also administratively close the case.

         I. BACKGROUND

         Petitioner was convicted following a jury trial in the Iosco County Circuit Court. Petitioner's conviction was affirmed on appeal. People v. Kleinert, No. 326356, 2016 WL 2909151 (Mich. Ct. App. May 17, 2016), lv. den. 500 Mich. 883, 886 N.W.2d 626 (2016).

         On November 30, 2017, petitioner filed a petition for writ of habeas corpus.[1]Petitioner seeks habeas relief on the following grounds: (1) petitioner was denied his right to a speedy trial, (2) coercion by threats of criminal acts against person for prosecution, (3) abuse of authority by judge, (4) witness tampering, and (5) ineffective assistance of counsel. By petitioner's own admission, none of these claims have been exhausted with the state courts.

         II. DISCUSSION

         The instant petition is subject to dismissal because none of petitioner's claims have been exhausted with the state courts.

         As a general rule, a state prisoner seeking 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 matter, “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 must dismiss habeas petitions which contain 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 has exhausted his or her state court remedies. Sitto v. Bock, 207 F.Supp.2d 668, 675 (E.D. Mich. 2002). The failure to exhaust state court remedies may be raised sua sponte by a federal court. See Benoit v. Bock, 237 F.Supp.2d 804, 806 (E.D. Mich. 2003); 28 U.S.C. § 2254(b)(3).

         Petitioner acknowledges throughout his petition that he failed to exhaust his claims, but argues that he did not do so because the state courts are biased against him. See, e.g., Dkt. 1, Pg. ID 5.

         An exception to the exhaustion requirement exists only if there is no opportunity to obtain relief in the state courts or if the corrective process is so clearly deficient as to render futile any effort to obtain relief in the state courts. Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Sitto, 207 F.Supp.2d at 676. A habeas petitioner, however, has the burden of showing that all available state court remedies have been exhausted or that exceptional circumstances exist which would make exhaustion unnecessary. See Doty v. Lund, 78 F.Supp.2d 898, 901 (N.D. Iowa 1999).

         Although petitioner claims that it would be futile to exhaust his remedies in state court, petitioner's actual failure to pursue his claims in state court “disqualifies his case from consideration under the narrow exception [to the exhaustion requirement]”. See Dillon v. Hutchinson, 82 F. App'x. 459, 462 (6th Cir. 2003). In addition, the “futility to object” exception to the exhaustion requirement is not satisfied by a habeas petitioner's expectation that a state court will rule against him or her. See United States ex. rel. Centanni v. Washington, 951 F.Supp. 1355, 1365 (N.D. Ill. 1997); See also Porter v. White, No. 2001 WL 902612, * 2 (E.D. Mich. Aug. 6, 2001). Moreover, a habeas petitioner's conclusory allegation that the state courts are biased is insufficient to establish futility to excuse the petitioner from exhausting his or her state court remedies. See, e.g., Crank v. Jenks, 224 F. App'x. 838, 839 (10th Cir. 2007). In determining whether the futility exception to the exhaustion requirement applies, the “pertinent question” is not whether the state court would be inclined to rule in the habeas petitioner's favor, but whether there is any available state procedure for determining the merits of petitioner's claim. Spreitzer v. Schomig, 219 F.3d 639, 647 (7th Cir. 2000) (quoting White v. Peters, 990 F.2d 338, 342 (7th Cir. 1993)).

         The exhaustion doctrine, in the context of habeas cases, thus turns upon an inquiry of whether there are available state court procedures for a habeas petitioner to exhaust his or her claims. See Adams v. Holland, 330 F.3d 398, 401 (6th Cir. 2003). Exhausting state court remedies in this case requires the filing of a post-conviction motion for relief from judgment under M.C.R. 6.500. See Wagner, 581 F.3d at 419. Petitioner could exhaust his claims by filing a motion for relief from judgment with the Iosco County Circuit Court under M.C.R. 6.502. Denial of a motion for relief from judgment is reviewable by the Michigan Court of Appeals and the Michigan Supreme Court upon the filing of an application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. See Nasr v. Stegall, 978 F.Supp. 714, 717 (E.D. Mich. 1997). Petitioner, in fact, is required to appeal the denial of his post-conviction motion to the Michigan Court of Appeals and the Michigan Supreme Court in order to properly exhaust any claims that he would raise in his post-conviction motion. See, e.g., Mohn v. Bock, 208 F.Supp.2d 796, 800 (E.D. Mich. 2002).

         The outright dismissal of the petition, albeit without prejudice, might result in preclusion of consideration of petitioner's claims in this Court due to the expiration of the one year statute of limitations contained in the Antiterrorism and Effective Death Penalty Act (AEDPA). See 28 U.S.C. ยง 2244(d)(1). A common circumstance that calls for the abatement of a habeas petition arises when the original petition was timely filed, as the case here, but a second, exhausted habeas petition would be time barred by the statute of ...


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