Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Carroll v. Harry

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

February 28, 2018

MICHAEL J. CARROLL, Petitioner,
v.
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.

         Petitioner 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 § 257.904.

         Respondent 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 remedies.

         I.

         Petitioner 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 revoked license.

         Petitioner 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 arraignment.

         The 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[1]: (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).

         Petitioner 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 innocent.

         Respondent filed a motion for dismissal on the ground that the petition contains unexhausted claims. This Court agrees that this petition is a mixed one.

         II.

         Before 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).

         Respondent 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).

         Petitioner 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.

         Petitioner 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, he ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.