United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING WITHOUT PREJUDICE THE
PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
TERRENCE G. BERG, UNITED STATES DISTRICT JUDGE.
prisoner Raymond Charles Pierson (“Petitioner”)
has filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 challenging his state
criminal proceedings. Dkt. 1. Following a 2012 jury trial in
the Washtenaw County Circuit, Petitioner was convicted of
first-degree home invasion, felon in possession of firearm,
possession of a firearm during the commission of a felony,
second offense, and resisting and obstructing a police
officer. Dkt. 1 at Pg ID 53. In March, 2012, Petitioner was
sentenced as a fourth habitual offender to 10 to 25 years
imprisonment on the home invasion conviction, concurrent
terms of 1 to 5 years imprisonment on the felon in possession
and resisting and obstructing convictions, and a consecutive
term of 5 years imprisonment on the felony firearm
conviction. Id. The Washentnaw Circuit County Court
denied Petitioner's subsequent Motion for Relief from
Judgment in September 2015. Dkt. 1 at Pg ID 53-71. In this
petition, which was filed on May 30, 2017, Petitioner claims
that 1) his trial counsel was ineffective, Dkt. 1 at Pg ID 6,
38; 2) the prosecutor engaged in misconduct, Dkt. 1 at Pg ID
35, 48; and 3) the trial court erred in denying his
suppression motion and admitting his police statements. Dkt.
1 at Pg ID 41, 44.
reasons set forth below, the Court DISMISSES
the petition for a writ of habeas corpus without prejudice.
The Court also DENIES a certificate of
appealability and leave to proceed in forma pauperis on
Petitioner has not established that he has properly exhausted
his state court remedies
prisoner must first exhaust all state remedies before filing
a petition for a writ of habeas corpus under 28 U.S.C.
§2254. See O'Sullivan v. Boerckel, 526 U.S.
838, 845 (1999)(“[S]tate prisoners must give the state
courts one full fair opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process”);
Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The
petitioner has the burden of proving exhaustion.
Rust, 17 F.3d at 160.
Michigan prisoners, proper exhaustion of state remedies
requires presenting both the factual and legal bases for any
constitutional claims in state court. McMeans v.
Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)
(citing McMeans). Petitioners must also raise these
claims as federal constitutional issues in the state court
proceedings. Koontz v. Glossa, 731 F.2d 365, 368
(6th Cir. 1984) And they must raise them at all levels of the
state courts-meaning on appeal to the Michigan Court of
Appeals and on subsequent appeal to the Michigan Supreme
Court. Hafley v. Sowders, 902 F.2d 480, 483 (6th
Cir. 1990); Welch v. Burke, 49 F.Supp.2d 992, 998
(E.D. Mich. 1999).
is only entitled to habeas relief if he can show the state
court adjudication of his claims resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established federal law as determined by the Supreme
Court of the United States. Witzke v. Bell, No.
07-CV-15315, 2007 WL 4557674 (E.D. Mich. Dec. 20, 2007);
Harris v. Prelisnik, No. 06-CV-15472, 2006 WL
3759945 (E.D. Mich. Dec. 20, 2006).
Petitioner had an appeal pending in the Michigan Court of
Appeals at the time he filed this petition challenging the
state trial court's denial of his motion for relief from
judgment for his current conviction. See People v.
Pierson, No. 332500 (Mich. Ct. App. Aug. 29, 2016)
(granting delayed application for leave to appeal as to Issue
II of the application); see also App. Dkt. Sheet,
Mich. Ct. App. No. 332500 (open case awaiting appellate
decision as to Issue II).
Michigan Court of Appeals affirmed the trial court's
denial of the motion for relief from judgment. People v.
Pierson, No. 332500, 2017 WL 4015789 (Mich. Ct. App.
Sept 12. 2017). Petitioner now has an application for leave
to appeal pending in the Michigan Supreme Court. See
App. Dkt. Sheet, Mich. Sup. Ct. No. 156720 (open case
awaiting decision). Regardless of whether Petitioner's
pending appeal for relief from judgment raises the same
constitutional claims as this petition, that appellate
proceeding may result in the reversal of Petitioner's
conviction and moot his constitutional claims presented here.
See Humphrey v. Scutt, No. 08-CV-14605, 2008 WL
4858091, *1 (E.D. Mich. Nov. 5, 2008) (citing Sherwood v.
Tomkins, 716 F.2d 632, 634 (9th Cir.1983), and Woods
v. Gilmore, 26 F.Supp.2d 1093, 1095 (C.D. Ill. 1998));
Szymanski v. Martin, 99-CV-76196-DT, 2000 WL 654916
(E.D. Mich. April 13, 2000). A non-prejudicial dismissal of
the petition is warranted under such circumstances.
No. stay pending the outcome of Petitioner's state court
federal district court has discretion to stay a mixed habeas
petition, containing both exhausted and unexhausted claims,
to allow a petitioner to present unexhausted claims to the
state courts and then return to federal court on a perfected
petition where 1) petitioner had good cause for failing to
exhaust his claims in state court; 2) those unexhausted
claims were meritorious; and 3) the petitioner did not engage
in intentionally dilatory tactics. Rhines v. Weber,
544 U.S. 269, 276 (2005).
does not request a stay, nor do his circumstances justify
one. Stay and abeyance is available only in “limited
circumstances” such as when the one-year statute of
limitations for filing federal habeas acts poses a concern,
or when the petitioner demonstrates “good cause”
for the failure to exhaust state remedies and has not brought
meritless claims or engaged in dilatory tactics.
Rhines, 544 U.S. at 277-78. In Rhines, for
example, the Court determined a stay of a habeas action was
appropriate where outright ...