United States District Court, E.D. Michigan, Southern Division
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
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.
reasons that follow, the petition for writ of habeas corpus
is SUMMARILY DISMISSED WITHOUT PREJUDICE. The motion for the
appointment of counsel is DENIED.
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
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).
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
Court dismisses the petition for writ of habeas corpus
because it contains a claim that was not properly exhausted
with the state courts.
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).
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. 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).
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.
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.
§ 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 ...