United States District Court, E.D. Michigan, Southern Division
AND ORDER DISMISSING WITHOUT PREJUDICE THE PETITION FOR A
WRIT OF HABEAS CORPUS, DENYING RESPONDENT'S AND
PETITIONER'S MOTIONS TO DISMISS, DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA PAUPERIS
HONORABLE NANCY G. EDMUNDS UNITED STATES DISTRICT JUDGE.
a habeas case under 28 U.S.C. § 2254. Michigan prisoner
David Lee Farris (“Petitioner”) asserts that he
is being held in violation of his constitutional rights.
Petitioner was convicted of three counts of first-degree
criminal sexual conduct following a jury trial in the Macomb
County Circuit Court and was sentenced, as a fourth habitual
offender, to concurrent terms of 60 to 120 years imprisonment
in 2014. In his pleadings, Petitioner raises claims
concerning the voluntariness and admission of his police
statement, the admission of other acts evidence, a limitation
on cross-examination and his right to present a defense, the
effectiveness of defense counsel, the jury instructions, the
search and seizure of evidence, his speedy trial rights, the
validity of his sentence, the exclusion of evidence and his
right to present a defense, the preliminary examination, the
sufficiency of the evidence, and the denial of a photo body
matter is before the Court on Respondent's motion to
dismiss the petition for failure to fully exhaust state court
remedies asserting that Habeas Claim VIII (sentencing) is
unexhausted. In response, Petitioner filed his own motion to
dismiss requesting that the unexhausted claim be dismissed
and that he be allowed to proceed on the remaining exhausted
claims. For the reasons set forth, the Court dismisses
without prejudice the habeas petition, denies
Respondent's and Petitioner's motions to dismiss,
denies a certificate of appealability, and denies leave to
proceed in forma pauperis on appeal.
his convictions and sentencing, Petitioner filed an appeal of
right with the Michigan Court of Appeals essentially raising
the same claims presented on habeas review. The court
affirmed Petitioner's convictions, but remanded for
resentencing under the procedures set forth in People v.
Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015) (citing
United States v. Crosby, 397 F.3d 103 (2d Cir.
2005)). People v. Farris, No. 324324, 2016 WL
1125920 (Mich. Ct. App. March 22, 2016) (unpublished).
Petitioner filed an application for leave to appeal with the
Michigan Supreme Court, which was denied in a standard order.
People v. Farris, 500 Mich. 896, 887 N.W.2d 191
(Nov. 30, 2016). The trial court conducted the hearing on
remand, determined that it would have imposed the same
sentence even if the guidelines had been advisory, and denied
resentencing. People v. Farris, No. 2014-0433-FC
(Macomb Co. Cir. Ct. March 2, 2017). Petitioner then filed an
appeal with the Michigan Court of Appeals, which remains
pending in that court. See People v. Farris, Mich.
Ct. App. No. 337821; see also Chief Clerk Zimmer
dated his federal habeas petition on July 31, 2017.
Respondent filed the motion to dismiss on February 14, 2018
and Petitioner dated his responsive motion to dismiss on
February 26, 2018.
the filing of a habeas petition, the Court must undertake a
preliminary review of the petition to determine whether
“it plainly appears from the face of the petition and
any exhibits annexed to it that the petitioner is not
entitled to relief in the district court.” Rule 4,
Rules Governing § 2254 Cases; see also 28 U.S.C. §
2243. If, after preliminary consideration, the Court
determines that the petitioner is not entitled to relief, the
Court must summarily dismiss the petition. Id.,
Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970)
(district court has the duty to “screen out”
petitions that lack merit on their face). A dismissal under
Rule 4 includes those petitions which raise legally frivolous
claims, as well as those containing factual allegations that
are palpably incredible or false. Carson v. Burke,
178 F.3d 434, 436-37 (6th Cir. 1999).
case, the motions and supplemental filings by the parties
reveal that the habeas petition must be dismissed because it
is premature. Petitioner's state convictions and
sentences are not yet final given that the Michigan Court of
Appeals remanded the case to the state trial court for a
resentencing decision and an appeal of the trial court's
decision on remand remains pending in the Michigan Court of
Appeals. See Burton v. Stewart, 549 U.S. 147, 156-57
(2007) (ruling that when a state court affirms a conviction
on direct review, but remands for resentencing, the judgment
of conviction does not become final, for purposes of the
statute of limitations, until the completion of direct review
from the new judgment of sentence and citing Berman v.
United States, 302 U.S. 211, 212 (1937) (“Final
judgment in a criminal case means sentence. The sentence is
the judgment”)); see also Rashad v. Lafler,
675 F.3d 564, 567-78 (6th Cir. 2012) (discussing
Burton). Petitioner cannot proceed on federal habeas
review until his convictions and sentences are finalized in
the state courts.
it is inappropriate for a habeas petitioner to challenge the
same criminal convictions and sentences in state court and
federal court at the same time. Petitioner must complete the
state court process before seeking habeas relief in federal
court. See 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). His habeas petition must therefore be
reasons stated, the Court concludes that Petitioner's
state convictions and sentences are not yet final and/or that
he has a matter pending in the state courts which concerns
the same convictions and sentence such that the instant
habeas petition is premature. Accordingly, the Court
DISMISSES WITHOUT PREJUDICE the petition for
a writ of habeas corpus. Given ...