United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION
FOR WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
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).
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
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).
November 30, 2017, petitioner filed a petition for writ of
habeas corpus.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.
instant petition is subject to dismissal because none of
petitioner's claims have been exhausted with the state
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. §
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.
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
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)).
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).
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. § 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 ...