United States District Court, E.D. Michigan, Southern Division
TODD D. ROBINSON, Petitioner,
SHAWN BREWER, Respondent.
OPINION AND ORDER DISMISSING THE HABEAS PETITION,
DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
prisoner Todd Douglas Robinson filed a habeas petition
pursuant to 28 U.S.C. § 2254. After trial in Jackson
County Circuit Court, a jury convicted Robinson of
first-degree murder and possession of a firearm during the
commission of a felony. In 2013, he was sentenced to
consecutive terms of life imprisonment without parole and two
years' imprisonment. Robinson's pro se petition
raises several claims, including three claims alleging that
his trial counsel was ineffective for failing to object to
review of the petition, it is apparent to the Court that
Robinson has not properly exhausted his state court remedies
as to his three ineffective assistance of counsel claims
related to the jury instructions. The Court will therefore
dismiss the petition for writ of habeas corpus without
prejudice, deny Robinson a certificate of appealability, and
deny Petitioner leave to proceed in forma pauperis on appeal.
his convictions and sentencing, Robinson filed an appeal of
right with the Michigan Court of Appeals raising numerous
claims. The Michigan Court of Appeals remanded the case to
the trial court for an evidentiary hearing. On remand, the
trial court conducted the requisite hearing and denied the
request for a new trial. The Michigan Court of Appeals
thereafter denied relief on Robinson's claims and
affirmed his convictions. People v. Robinson, No.
317282, 2015 WL 3604464 (Mich. Ct. App. June 9, 2015)
(unpublished). Robinson then filed an application for leave
to appeal with the Michigan Supreme Court raising the same
claims, and subsequently moved to amend the application to
add the three claims concerning the effectiveness of trial
counsel for failing to object to the jury instructions. The
Michigan Supreme Court granted the motion to amend, but
denied leave to appeal in a standard order. People v.
Robinson, 499 Mich. 861 (2016). Robinson signed his
habeas petition on May 23, 2016. Respondent filed an answer
contending that the ineffective assistance of trial counsel
claims related to the jury instructions may be unexhausted
and, regardless, that all claims lack merit.
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. §2254 must first exhaust all state remedies.
See 28 U.S.C. §§ 2254(b)(1)(A) and (c); see
also 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."). A habeas
petitioner must present each claim to the state courts prior
to seeking federal habeas review from a federal court. 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.
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir.
2006) (citing McMeans v. Brigano, 228 F.3d 674, 681
(6th Cir. 2000)). The claims must also be presented to the
state courts as federal constitutional issues. See Koontz
v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). Each issue
must be presented to both the Michigan Court of Appeals and
the Michigan Supreme Court to satisfy the exhaustion
requirement. Hafley v. Sowders, 902 F.2d 480, 483
(6th Cir. 1990). The petitioner must prove exhaustion.
Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
has not met his burden of proving exhaustion. Robinson did
not present his three habeas claims concerning trial
counsel's failure to object to the jury instructions to
the Michigan Court of Appeals. Rather, he first raised those
claims before the Michigan Supreme Court. Presentation of an
issue for the first time on discretionary review to a state
supreme court does not fulfill the requirement of "fair
presentation." See Castille v. Peoples, 489
U.S. 346, 351 (1989); Hickey v. Hoffner, 701
Fed.Appx. 422, 425 (6th Cir. 2017). The Michigan Supreme
Court's grant of leave for Robinson to amend does not
alter that conclusion. "Unless the state supreme court
actually grants leave to appeal and reviews the issue, [the
claim] remains unexhausted in the state courts."
Carroll v. Harry, No. 2:16-CV-13298, 2018 WL
1088073, *2 (E.D. Mich. Feb. 28, 2018) (citation omitted).
Robinson has thus failed to properly exhaust three of his
five habeas claims in the state courts before proceeding on
federal habeas review.
a federal district court should dismiss a "mixed"
petition for writ of habeas corpus that contains both
exhausted and unexhausted claims. The petitioner is left
"with the choice of returning to state court to exhaust
his claims or of amending [and] resubmitting the habeas
petition to present only exhausted claims to the district
court." Rose v. Lundy, 455 U.S. 509, 510
(1982). Although the exhaustion requirement is strictly
enforced, it is not a jurisdictional prerequisite. Castille,
489 U.S. at 349. Exceptions exist, for example, if pursuit of
the unexhausted claim in a state court would be futile,
see Witzke v. Withrow, 702 F.Supp. 1338, 1348 (W.D.
Mich. 1988), or if the unexhausted claim is meritless such
that addressing it would be efficient and not offend
federal-state comity. See Prather v. Rees, 822 F.2d
1418, 1422 (6th Cir. 1987). In limited circumstances and in
its discretion, a federal district court may stay a mixed
habeas petition to allow a petitioner to present his
unexhausted claims to the state courts. See Rhines v.
Weber, 544 U.S. 269, 276-77 (2005).
no exceptions to dismissal of mixed petitions or limited
circumstances exist. The Court, therefore, does not need to
address the merits of the claims or stay the proceedings.
Robinson has available remedies in the Michigan courts, which
he must exhaust. For example, he may file a motion for relief
from judgment pursuant to Michigan Court Rule 6.500 with the
state trial court and then pursue his unexhausted issues in
the state appellate courts as necessary.
the one-year statute of limitations applicable to federal
habeas actions, see 28 U.S.C. § 2244(d), does not pose a
problem for Robinson as long as he pursues his state court
remedies in a prompt fashion. The one-year period does not
begin to run until 90 days after the conclusion of direct
appeal. See Lawrence v. Florida, 549 U.S. 327, 333
(2007). The one-year limitation will be tolled during the
pendency of properly-filed state post-conviction or
collateral actions, 28 U.S.C. § 2244(d)(2), and the
Court equitably tolls the time that a habeas petition is
pending in a federal court, see e.g. Johnson v.
Warren, 344 F.Supp.2d 1081, 1088-89 (E.D. Mich.
statute of limitations in the present case began to run on
May 3, 2016-90 days after the Michigan Supreme Court denied
Robinson's leave to appeal. The statute of limitations
ran until May 23, 2016 when Robinson placed his federal
habeas petition in the mail. Accordingly, only 20 days of the
one-year statute of limitations had expired at the time
Robinson instituted this action. Given that more than 300
days of the one-year period remain, ...