United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING WITHOUT PREJUDICE THE
PETITION FOR A WRIT OF HABEAS CORPUS, DENYING THE MOTION TO
HOLD THE PETITION IN ABEYANCE, AND DENYING A CERTIFICATE OF
H. CLELAND UNITED STATES DISTRICT JUDGE
prisoner Jamil Stefon Carter has filed a pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his state criminal proceedings, as well as a
motion to hold the petition in abeyance. Petitioner pleaded
guilty to second-degree murder and possession of a firearm
during the commission of a felony, second offense, in the
Wayne County Circuit and was sentenced to consecutive terms
of 19 to 60 years imprisonment and five years imprisonment on
those convictions in 2015. In his petition, he raises claims
concerning his actual innocence, the conduct of the
prosecutor, and the effectiveness of trial and appellate
counsel. For the reasons set forth herein, the court
dismisses without prejudice the petition for a writ of habeas
corpus and denies the motion to hold the petition in
abeyance. The court also denies a certificate of
after 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; 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).
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. §2254 must first exhaust all state remedies.
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”); Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994). A Michigan prisoner must raise
each issue he or she seeks to present in a federal habeas
proceeding to the state courts for review. The claims must be
“fairly presented” to the state courts, meaning
that the petitioner must have asserted both the factual and
legal bases for the claims in the state courts. 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). The claims must also be
raised in the state courts as federal constitutional issues.
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); Welch v. Burke, 49
F.Supp.2d 992, 998 (E.D. Mich. 1999). The burden is on the
petitioner to prove exhaustion. Rust, 17 F.3d at
case, Petitioner admits that he has not exhausted all of his
habeas claims in the state courts and that he has currently
has a motion for relief from judgment pending the Wayne
County Circuit Court concerning his habeas claims. Petitioner
must complete the state court process before seeking habeas
relief in federal court. 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). Federal habeas law
provides that a habeas petitioner is only entitled to relief
if he can show that 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. 28 U.S.C. § 2254(d). The state courts must first
be given a fair opportunity to rule upon all of
Petitioner's claims before he can present them in federal
court. Otherwise, the court cannot apply the standard found
at 28 U.S.C. § 2254.
Petitioner's pending state court proceeding may result in
the reversal of his convictions on another ground, thereby
mooting the federal questions presented. 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.
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. Rhines v. Weber, 544 U.S. 269, 276 (2005).
Stay and abeyance is available only in “limited
circumstances” such as when the one-year statute of
limitations poses a concern, and when the petitioner
demonstrates “good cause” for the failure to
exhaust state remedies before proceeding in federal court,
the petitioner has not engaged in intentionally dilatory
litigation tactics, and the unexhausted claims are not
“plainly meritless.” Id. at 277-78. In
Rhines, the Supreme Court adopted the stay and
abeyance procedure to specifically address the situation when
outright dismissal of a habeas petition could jeopardize the
timeliness of a future petition following the exhaustion of
state remedies. Id. at 275 (noting that if the court
dismissed the habeas petition “close to the end of the
1-year period, the petitioner's chances of exhausting his
claims in state court and refiling in federal court before
the limitation period [expired would be] slim”). Thus,
stay and abeyance is generally reserved for cases where the
AEDPA's one-year limitations period is likely to expire
before a habeas petitioner can return to state court to
exhaust additional claims and then return to federal court on
an amended petition. See, e.g., Moss v. Hofbauer,
No. 07-10687, 2007 WL 317968, *2-3 (E.D. Mich. Oct. 16,
seeks to hold his petition in abeyance and stay the
proceedings while he completes the state court process. His
circumstances, however, do not justify a stay and abeyance.
The one-year statute of limitations applicable to federal
habeas actions, see 28 U.S.C. § 2244(d), does
not pose a concern. The Michigan Supreme Court denied leave
to appeal on direct appeal on April 1, 2017. People v.
Carter, 500 Mich. 960891 N.W.2d 491 (April 1, 2017). The
United States Supreme Court subsequently denied certiorari on
October 2, 2017. Carter v. Michigan, U.S., 138 S.Ct.
252 (Oct. 2, 2017). That is when Petitioner's convictions
became final. He then had one year, until October 2, 2018, to
file his federal habeas petition or seek additional state
court review. See 28 U.S.C. § 2244(d)(2).
filed his motion for relief from judgment with the state
trial court on December 11, 2017. See Register of
Actions, People v. Carter, No. 15-004311-01-FC
(Wayne Co. Cir. Ct.). At that point, just over two months of
the one-year period had run. The matter has been pending in
the state courts since that time and is still before the
trial court. The limitations period has been, and will
continue to be, tolled during the time in which
Petitioner's motion for relief from judgment and related
appeals are properly filed and pending in the state courts.
See 28 U.S.C. § 2244(d)(2); Carey v.
Saffold, 536 U.S. 214, 219-21 (2002). Given that more
than nine months of the one-year period remain, Petitioner
has sufficient time to fully exhaust his state court remedies
and return to federal court on a new habeas petition should
he wish to do so.
while there is no evidence of intentional delay, the court
cannot determine the potential merit of Petitioner's
claims. Additionally, while Petitioner asserts that appellate
counsel was ineffective for failing to raise certain claims
on direct appeal, he neither alleges nor establishes good
cause for failing to exhaust all of his issues on collateral
review in the state courts before seeking federal habeas
relief. Given such circumstances, a stay is unwarranted and a
non-prejudicial dismissal of the habeas petition is
CERTIFICATE OF APPEALABILITY
Petitioner may appeal the court's decision, a certificate
of appealability must issue. See 28 U.S.C. §
2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When a court
denies relief on procedural grounds without addressing the
merits, a certificate of appealability should issue if it is
shown that jurists of reason would find it debatable whether
the petitioner states a valid claim of the denial of a
constitutional right, and that jurists of reason would find
it debatable whether the court was correct in its procedural
ruling. Slack v. ...