United States District Court, E.D. Michigan, Southern Division
MICHAEL J. CARROLL, Petitioner,
SHIRLEE HARRY, Respondent.
OPINION AND ORDER DENYING RESPONDENT'S MOTION FOR
DISMISSAL, GRANTING PETITIONER'S REQUEST FOR STAY, AND
ADMINISTRATIVELY CLOSING CASE
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.
Michael J. Carroll, a state inmate presently incarcerated at
the Gus Harrison Correctional Facility in Adrian, Michigan,
filed a pro se petition for writ of habeas corpus
under 28 U.S.C. § 2254. He challenges his convictions
for second-degree fleeing and eluding a police officer, Mich.
Comp. Laws § 257.602a(4), carrying a concealed weapon,
Mich. Comp. Laws § 750.227, operating a motor vehicle
while intoxicated, Mich. Comp. Laws § 257.625(1)(c), and
driving with a suspended or revoked license, Mich. Comp. Laws
filed a motion for dismissal on the ground that the petition
raises claims that were not properly exhausted in state
court. Petitioner replied claiming that he exhausted state
court remedies. In the alternative, Petitioner request a stay
if the Court finds that he did not exhaust state court
was convicted by a jury in Oakland County Circuit Court and
sentenced as a fourth habitual offender as follows: 6 to 50
years for second-degree fleeing and eluding, 6 to 15 years
for carrying a concealed weapon in a vehicle, and 134 days
for driving while intoxicated and driving with a suspended or
filed an appeal of right with the Michigan Court of Appeals.
He raised these claims: (i) trial court abused its discretion
in sentencing him to a maximum term of 50 years for
second-degree fleeing and eluding; (ii) insufficient evidence
supported his convictions for second-degree fleeing and
eluding and carrying a concealed weapon; (iii) trial counsel
was ineffective; and (iv) no knowing or voluntary waiver of
Michigan Court of Appeals affirmed Petitioner's
convictions and sentences. People v. Carroll, No.
317174, 2014 WL 5162476 (Mich. Ct. App. Oct. 14, 2014).
Petitioner then filed an application for leave to appeal in
the Michigan Supreme Court. He raised the same claims raised
in the Michigan Court of Appeals and these additional
claims: (i) Brady violation; (ii)
prosecutorial misconduct; (iii) no reasonable suspicion to
stop vehicle; (iv) no probable cause to arrest Petitioner;
and (v) newly discovered impeachment evidence. The Michigan
Supreme Court denied leave to appeal, People v.
Carroll, 498 Mich. 884 (Mich. 2015), and denied
Petitioner's motion for reconsideration. People v.
Carroll, 499 Mich. 885 (Mich. 2016).
then filed the pending habeas corpus petition. He raises
these claims: (i) prosecutor withheld evidence; (ii)
prosecutor permitted perjured testimony; (iii) prosecutor
knowingly presented fraudulent case; (iv) Fourth Amendment
violation, no reasonable suspicion to stop Petitioner's
vehicle; (v) ineffective assistance of trial counsel; (vi)
insufficient evidence of fleeing and eluding and CCW; (vii)
newly discovered evidence proves Petitioner's innocence;
(viii) constitutional rights violated by arraignment
procedure; and (ix) Petitioner is factually and legally
filed a motion for dismissal on the ground that the petition
contains unexhausted claims. This Court agrees that this
petition is a mixed one.
the Court may grant habeas relief to a state prisoner, the
prisoner must exhaust all available remedies in state court.
28 U.S.C. § 2254(b). See O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (“state
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”). To satisfy this requirement, the
claims must be “fairly presented” to the state
courts, meaning that the prisoner must have asserted both the
factual and legal bases for the claims in the state courts.
See Baldwin v. Reese, 541 U.S. 27, 29-32 (2004).
Exhaustion also requires that the petitioner invoke
“one full round” of the state's appellate
review process. O'Sullivan, 526 U.S. at 845.
Each issue must be presented to both the Michigan Court of
Appeals and the Michigan Supreme Court to satisfy the
exhaustion requirement. Morse v. Trippett, 37 Fed.
App'x 96, 103 (6th Cir. 2002). The burden is on the
petitioner to prove exhaustion. Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994).
argues that Petitioner's first three claims for habeas
corpus relief were not properly exhausted because they were
presented for the first time in his application for leave to
appeal to the Michigan Supreme Court, which was denied.
Presentation of an issue for the first time on discretionary
review to the state supreme court does not fulfill the
requirement of “fair presentation.” Castille
v. Peoples, 489 U.S. 346, 351 (1989). The Sixth Circuit
repeatedly has held that a habeas petitioner does not comply
with the exhaustion requirement when he fails to raise a
claim in the state court of appeals, but raises it for the
first time on discretionary appeal to the state's highest
court. See Hickey v. Hoffner, 701 Fed. App'x
422, 425 (6th Cir. 2017); Skinner v. McLemore, 425
Fed. App'x 491, 494 (6th Cir. 2011).
argues that these claims were exhausted because the Michigan
Supreme Court allowed him to add new issues to his
applciation for leave to appeal. The Michigan Supreme Court,
however, denied leave to appeal. “Unless the state
supreme court actually grants leave to appeal and reviews the
issue, it remains unexhausted in the state courts.”
Marchese v. Lafler, 2009 WL 3756900, *2 (W.D. Mich.
Nov. 6, 2009). Consequently, the petition is a mixed one,
containing both exhausted and unexhausted claims.
asks the Court either to excuse the exhaustion requirement or
stay the petition. Exceptions to the exhaustion requirement
exist when “there is an absence of available State
corrective process, ” 28 U.S.C. §
2254(b)(1)(B)(i), or “circumstances exist that render
such process ineffective to protect the rights of the
applicant, ” 28 U.S.C. § 2254(b)(1)(B)(ii). These
exceptions, however, do not apply here because Petitioner has
an available remedy to exhaust. He may file a motion for
relief from judgment in the state trial court under Michigan
Court Rule 6.502. If he is unsuccessful in the trial court,