United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS, DISMISSING PETITION WITHOUT PREJUDICE, AND DENYING
CERTIFICATE OF APPEALABILITY
Page Hood Chief Judge, United States District Court
state prisoner Lenero Thomas filed a pro se petition
for a writ of habeas corpus under 28 U.S.C. § 2254.
Thomas challenges his convictions for assault with intent to
do great bodily harm less than murder, malicious destruction
of property, and third-degree retail fraud. Respondent seeks
dismissal of the petition on the ground that Thomas has
failed to exhaust his state court remedies. The Court
determines that the petition raises unexhausted claims,
grants the motion, and dismisses the petition without
was convicted following a bench trial in Wayne County Circuit
Court. On December 17, 2014, he was sentenced to 34 months to
ten years for the assault with intent to do great bodily harm
conviction, 23 months to 5 years for the malicious
destruction of property conviction, and 90 days in jail, time
served, for the retail fraud conviction.
filed an appeal of right in the Michigan Court of Appeals. He
sought relief on the ground that the trial court erred in
finding him guilty of assault with intent to do great bodily
harm less than murder because insufficient evidence supported
the intent element of that offense. The Michigan Court of
Appeals affirmed Thomas's convictions. People v.
Thomas, No. 325388, 2016 WL 6395077 (Mich. Ct. App. Oct.
27, 2016). In an application for leave to appeal to the
Michigan Supreme Court, Thomas raised the sufficiency of the
evidence claim, and the following additional claims: (i) he
was improperly held without arraignment and retried on
dismissed charges in violation of the Double Jeopardy Clause;
(ii) he should have been sentenced to county jail time or
community programming; (iii) ineffective assistance of
counsel; (iv) he did not consent to a bench trial; and (v)
the defense was denied an opportunity to cross-examine
witnesses. The Michigan Supreme Court denied leave to appeal.
People v. Thomas, 500 Mich. 1021 (Mich. 2017).
then filed this habeas corpus petition. He raises these
claims: (i) Petitioner should have been charged with
aggravated assault instead of assault with intent to do great
bodily harm less than murder; (ii) insufficient evidence
supported conviction; (iii) Petitioner's alleged
statement regarding his intent to harm the victim is not
supported by videotape evidence; (iv) Double Jeopardy
violation; (v) denied right to a fair trial by court's
limitations on cross-examination and trial court's
exhortations that the defense hurry up.
has filed a motion to dismiss on the ground that the petition
contains unexhausted claims. Petitioner has not filed a
response to the motion.
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,
119 S.Ct. 1728, 1732 (1999) (“[S]tate prisoners must
give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process.”). To
satisfy this requirement, 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. See 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). While the exhaustion
requirement is not jurisdictional, a “strong
presumption” exists that a petitioner must exhaust
available state remedies before seeking federal habeas
review. See Granberry v. Greer, 481 U.S. 129, 131,
134-35, 107 S.Ct. 1671, 1674-75 (1987). State prisoners in
Michigan must raise each claim in the Michigan Court of
Appeals and in the Michigan Supreme Court before seeking
federal habeas corpus relief. See Delisle v. Rivers,
161 F.3d 370, 381 (6th Cir. 1998). The burden is on the
petitioner to prove exhaustion. Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994).
fails to satisfy his burden of showing exhaustion of state
court remedies. Thomas has failed to raise his claim that he
was denied the right to present a defense in either the
Michigan Court of Appeals or Michigan Supreme Court. He
presented his double jeopardy and charging discretion claims
for the first time to the Michigan Supreme Court.
“[S]ubmission of new claims to a state's highest
court on discretionary review does not constitute fair
presentation of the claims to the state courts.”
Skinner v. McLemore, 425 Fed.Appx. 491, 494 (6th
Cir. 2011), citing Castille v. Peoples, 489 U.S.
346, 349, 109 S.Ct. 1056, 1060 (1989). A prisoner is required
to comply with the exhaustion requirement as long as there is
still a state-court procedure available for him to do so.
See Adams v. Holland, 330 F.3d 398, 401 (6th Cir.
2003). In this case, a procedure is available to Thomas.
Thomas may file a motion for relief from judgment in the
Wayne County Circuit Court under Michigan Court Rule 6.502.
If that motion is denied, he may seek review by the Michigan
Court of Appeals and Michigan Supreme Court by filing an
application for leave to appeal. Mich. Ct. R. 6.509; Mich.
Ct. R. 7.203; Mich. Ct. R. 7.302.
federal district court has discretion to stay a habeas
petition to allow a petitioner to present unexhausted claims
to the state courts in the first instance and then return to
federal court on a perfected petition. See Rhines v.
Weber, 544 U.S. 269, 276 (2005). Stay and abeyance is
available only in “limited circumstances” when
the one-year statute of limitations applicable to federal
habeas actions poses a concern, the petitioner demonstrates
“good cause” for the failure to exhaust state
court remedies before proceeding in federal court, and the
unexhausted claims are not “plainly meritless.”
Id. at 277. Thomas has not shown the need for a stay
because the one-year limitations period is not at risk of
expiring while he returns to state court. See 28
U.S.C. § 2244(d). The one-year period does not begin to
until 90 days after the conclusion of direct appeal.
Gonzalez v. Thaler, 565 U.S. 134, 149, 132 S.Ct.
641, 653 (2012) (stating that a conviction becomes final when
the time for filing a certiorari petition expires). The
Michigan Supreme Court denied leave to appeal on June 27,
2017, and the time for seeking a writ of certiorari with the
United States Supreme Court expired 90 days later - on
September 25, 2017. Thomas filed his federal habeas petition
on October 2, 2017. Nearly the entire year of the one-year
limitations period remained when he filed the petition. While
the time in which this case has been pending in federal court
is not statutorily tolled, see Duncan v. Walker, 533
U.S. 167, 181-82 (2001) (a federal habeas petition is not an
“application for State post-conviction or other
collateral review” within the meaning of 28 U.S.C.
§ 2244(d)(2) so as to statutorily toll the limitations
period), such time may be equitably tolled. See, e.g.,
Johnson v. Warren, 344 F.Supp.2d 1081, 1088-89 (E.D.
Mich. 2004). The limitations period will also be tolled
during the time in which any properly filed post-conviction
or collateral actions are pending in the state courts.
See 28 U.S.C. § 2244(d)(2); Carey v.
Saffold, 536 U.S. 214, 219-221 (2002). Thomas has ample
time to fully exhaust his state court remedies and return to
federal court should he wish to do so.
assuming that Thomas has not engaged in “intentionally
dilatory tactics” and has shown “good
cause” for failing to fully exhaust issues in the state
courts before seeking federal habeas relief, he has not shown
the need for a stay. The state courts should be given a fair
opportunity to rule upon those unexhausted claims. A
non-prejudicial dismissal of the habeas petition is
Court GRANTS Respondent's Motion to
Dismiss (ECF No. 10), and DISMISSES WITHOUT