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Durant v. Skipper

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

April 30, 2018

BLADE ANTHONY DURANT, Petitioner,
v.
GREG SKIPPER, Respondent,

          OPINION AND ORDER HOLDING THE PETITION FOR WRIT OF HABEAS CORPUS IN ABEYANCE AND ADMINISTRATIVELY CLOSING THE CASE

          DENISE PAGE HOOD CHIEF UNITED STATES DISTRICT JUDGE

         Blade Anthony Durant, (“Petitioner”), confined at the Michigan Reformatory in Ionia, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for second-degree murder, armed robbery, and felony firearm. The petition is subject to dismissal because none of the claims have been exhausted with the state courts. In lieu of dismissing the petition, the Court holds the petition in abeyance and stays the proceedings under the terms outlined below in the opinion to permit petitioner to return to the state courts to exhaust his claims, failing which the petition shall be dismissed without prejudice. The Court administratively closes the case.

         I. Background

         Petitioner was originally charged with first-degree murder, armed robbery, and felony-firearm. Petitioner pleaded guilty to a reduced charge of second-degree murder and to the other two charges in the Wayne County Circuit Court. On January 15, 2017, petitioner was sentenced to 20 to 40 years in prison on the second-degree murder conviction and received lesser sentences on the other charges.

         On March 2, 2018, petitioner filed a petition for writ of habeas corpus.[1] Petitioner seeks habeas relief on several grounds. By his own admission, petitioner did not file an appeal with the Michigan appellate courts and has yet to present any of these claims to the Michigan courts either on direct appeal or on state post-conviction review.

         II. Discussion

         The petition is subject to dismissal, because petitioner has not exhausted his claims with the state courts.

         A state prisoner seeking federal habeas relief must first 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). Although exhaustion is not a jurisdictional matter, “it is a threshold question that must be resolved” before a federal court may adjudicate 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 habeas petitions which contain 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. 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 has exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The instant petition is subject to dismissal, because petitioner failed to allege or indicate that he exhausted available state court remedies. See Peralta v. Leavitt, 56 F. App'x. 534, 535 (2nd Cir. 2003); See also Fast v. Wead, 509 F.Supp. 744, 746 (N.D. Ohio 1981).

         The exhaustion doctrine, in the context of habeas cases, turns upon whether there are available state court procedures for a habeas petitioner to exhaust his or her claims. See Adams v. Holland, 330 F.3d 398, 401 (6th Cir. 2003). Under M.C.R. 7.205(F)(3), petitioner had six months to file a delayed application for leave to appeal with the Michigan Court of Appeals. Because petitioner was sentenced on January 15, 2017, the time for him to seek direct appellate review of his case has expired. This does not mean, however, that petitioner does not have an available state court remedy with which to exhaust his claims.

         Petitioner could exhaust his claims regarding his state court conviction by filing a post-conviction motion for relief from judgment under Michigan Court Rule 6.500 with the Wayne County Circuit Court. See Wagner v. Smith, 581 F.3d at 419. Under Michigan law, a defendant's criminal conviction is reviewable in accordance with M.C.R. 6.500 et. seq. when the time limitation for filing an application for leave to appeal has expired. See People v. Caston, 228 Mich.App. 291, 297-98; 579 N.W.2d 368 (1998). Denial of a motion for relief from judgment is reviewable by the Michigan Court of Appeals and the Michigan Supreme Court upon the filing of an application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. Nasr v. Stegall, 978 F.Supp. 714, 717 (E.D. Mich. 1997).

         Petitioner, in fact, is required to appeal the denial of his post-conviction motion to the Michigan Court of Appeals and the Michigan Supreme Court in order to properly exhaust any claims that he would raise in his post-conviction motion. See e.g. Mohn v. Bock, 208 F.Supp.2d 796, 800 (E.D. Mich. 2002). Petitioner can exhaust his claims by filing a post-conviction motion for relief from judgment; any habeas challenge to his state court convictions is thus premature. See e.g. Enochs v. Walton, No. 2:12-CV-11507, 2012 WL 1401729, at *5 (E.D. Mich. Apr. 19, 2012).

         The Court is concerned that by dismissing the current petition, albeit without prejudice, there is the danger that petitioner might be prevented under the one year statute of limitations contained within 28 U.S.C. § 2244(d)(1) from re-filing a petition for writ of habeas corpus following the exhaustion of his claims in the state courts.[2]

         A habeas petitioner who is concerned about the possible effects of his or her state post-conviction filings on the AEDPA's statute of limitations could file a “protective” petition in federal court and then ask for the petition to be held in abeyance pending the exhaustion of state post-conviction remedies. See Pace v. DiGuglielmo,544 U.S. 408, 416 (2005)(citing Rhines v. Weber,544 U.S. 269 (2005)). A federal court may stay a federal habeas petition and hold further proceedings in abeyance pending resolution of state court post-conviction proceedings, ...


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