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Cole v. Gidley

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

April 27, 2018

LARRY JOHN COLE, Petitioner,
v.
LORI GIDLEY, Respondent,

          OPINION AND ORDER SUMMARILY DISMISSING WITHOUT PREJUDICE THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING THE MOTION FOR THE APPOINTMENT OF COUNSEL, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND DENYING PETITIONER LEAVETO APPEAL IN FORMA PAUPERIS

          HONORABLE VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE

         Larry John Cole, (“Petitioner”), confined at the Central Michigan Correctional Facility in St. Louis, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction for attempted second-degree arson, M.C.L.A. 750.731.

         For the reasons that follow, the petition for writ of habeas corpus is SUMMARILY DISMISSED WITHOUT PREJUDICE. The motion for the appointment of counsel is DENIED.

         I. Background

         Petitioner pleaded nolo contendere in the Emmett County Circuit Court and was sentenced to three to five years in prison. Petitioner filed a motion to withdraw his plea, which was denied.

         Petitioner's conviction was affirmed on appeal. People v. Cole, No. 335444 (Mich.Ct.App. Dec. 20, 2016); lv. den. ---- Mich.----; 906 N.W.2d 784 (2018).

         Petitioner seeks a writ of habeas corpus on the following grounds: 1) The trial judge abused his discretion in denying Petitioner's motion to withdraw his nolo contendere plea, 2) the judge failed to articulate reasons for departing above the sentencing guidelines range, and 3) ineffective assistance of trial and appellate counsel

         II. Discussion

         The Court dismisses the petition for writ of habeas corpus because it contains a claim that was not properly exhausted with the state courts.

         A state prisoner seeking federal habeas relief is required to exhaust his or her available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and (c). See Picard v. Connor, 404 U.S. 270, 275-78 (1971); See also Foster v. Withrow, 159 F.Supp.2d 629, 638 (E.D. Mich. 2001). Although not jurisdictional, exhaustion “is a threshold question that must be resolved” before a federal court can reach the merits of any claim contained in a habeas petition. See Wagner v. Smith, 581 F.3d 410, 415 (6th Cir. 2009). Therefore, each claim must be reviewed by a federal court for exhaustion before any claim may be reviewed on the merits by a federal court. Id. Federal district courts must dismiss mixed habeas petitions which contain both exhausted and unexhausted claims. See Pliler v. Ford, 542 U.S. 225, 230 (2004)(citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). The failure to exhaust state court remedies may be raised sua sponte by a federal court. See Benoit v. Bock, 237 F.Supp.2d 804, 806 (E.D. Mich.2003); 28 U.S.C. § 2254(b)(3). A habeas petitioner has the burden of proving that he or she exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

         Petitioner admits raising his ineffective assistance of appellate counsel claim only for the first time in his application for leave to appeal before the Michigan Supreme Court.[1] Petitioner's claim of ineffective assistance of appellate counsel is subject to the exhaustion requirement. See Baldwin v. Reese, 541 U.S. 27, 30-33 (2004). Raising a claim for the first time before the state courts on discretionary review does not amount to a “fair presentation” of the claim to the state courts for exhaustion purposes. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Petitioner failed to present his ineffective assistance of appellate counsel claim on his direct appeal with the Michigan Court of Appeals; his subsequent presentation of the claim to the Michigan Supreme Court does not satisfy the exhaustion requirement for habeas purposes. See Skinner v. McLemore, 425 F. App'x. 491, 494 (6th Cir. 2011); Farley v. Lafler, 193 F. App'x. 543, 549 (6th Cir. 2006).

         Petitioner has an available state court remedy with which to exhaust his claim. Petitioner may file a motion for relief from judgment with the trial court under Michigan Court Rule 6.500 et seq. to exhaust his ineffective assistance of appellate counsel claim and pursue this claim in the state appellate courts as necessary. See Wagner v. Smith, 581 F.3d at 419; Mohn v. Bock, 208 F.Supp.2d 796, 800 (E.D. Mich. 2002). The unexhausted claim concerns a matter of federal law which may warrant further review. This claim should be addressed to and considered by, the state courts in the first instance. Otherwise, the Court cannot apply the standard found at 28 U.S.C. § 2254.

         Although a district court has the discretion to stay a mixed habeas petition containing both exhausted and unexhausted claims to allow a petitioner to present his or her unexhausted claims to the state court in the first instance, See Rhines v. Weber,544 U.S. 269 (2005), there are no exceptional or unusual circumstances present which would justify holding the instant petition for writ of habeas corpus in abeyance pending Petitioner's return to the state courts to exhaust his claim, rather than dismissing it without prejudice. The Michigan Supreme Court denied Petitioner's application for leave to appeal on February 20, 2018. However, the one year statute of limitations under 28 U.S.C. ยง 2244(d)(1) for filing habeas petitions did not begin to run on that day. Where a state prisoner has sought direct review of his conviction in the state's highest court but does not file a petition for certiorari with the U.S. Supreme Court, the one year limitation period for seeking habeas review under 28 ...


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