United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING PETITIONER'S
APPLICATION FOR A WRIT OF HABEAS CORPUS, DENYING A
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO PROCEED ON
APPEAL IN FORMA PAUPERIS
BERNARD A. FRIEDMAN, SENIOR UNITED STATES DISTRICT JUDGE.
a pro se habeas case brought pursuant to 28 U.S.C. §
2254. Petitioner was convicted of carrying a concealed weapon
(“CCW”), being a felon in possession of a
firearm, and possessing a firearm during the commission of a
felony (“felony firearm”), third offense, after a
jury trial in Oakland County Circuit Court. He was sentenced
in 2015 to concurrent terms of 7 months to 20 years
imprisonment on the CCW and felon in possession convictions
and a consecutive term of 10 years imprisonment on the felony
firearm conviction. Petitioner raises claims concerning the
trial court's denial of a motion to suppress evidence,
the effectiveness of trial counsel for failing to properly
prepare for the suppression hearing, and his due process
right to litigate his claims in the appellate courts. For the
reasons stated below, the Court shall dismiss the petitioner
without prejudice. The Court shall also deny a certificate of
appealability and leave to proceed on appeal in forma
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); Rust v. Zent, 17 F.3d 155, 160 (6th Cir.
1994). To satisfy the exhaustion requirement, 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). Further, the claims must be presented to the state
courts as federal constitutional issues. Koontz v.
Glossa, 731 F.2d 365, 368 (6th Cir. 1984). In Michigan,
each issue must be presented to both the Michigan Court of
Appeals and the Michigan Supreme Court to satisfy the
exhaustion requirement. 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 160.
record before the Court indicates that petitioner raised his
suppression claim before the Michigan Court of Appeals and
the Michigan Supreme Court, but he did not raise the same
ineffective assistance of counsel claim in the Michigan Court
of Appeals and he did not raise his due process claim in the
Michigan Court of Appeals. See People v. Jackson,
No. 330429, 2017 WL 2704913 (Mich. Ct. App. June 22, 2017)
(unpublished). It is unclear if the petitioner raised those
two specific claims in the Michigan Supreme Court. However,
even assuming that he did so, he has not met the exhaustion
requirement. Presenting new issues for the first time before
a state supreme court on discretionary review does not amount
to a “fair presentation” of those claims to the
state courts for exhaustion purposes. Castille v.
Peoples, 489 U.S. 346, 351 (1989). Petitioner thus fails
to demonstrate that he properly exhausted all of his claims
in the state courts before seeking federal habeas review.
a federal district court should dismiss a “mixed”
habeas petition, that is, one containing both exhausted and
unexhausted claims, “leaving the prisoner with the
choice of returning to state court to exhaust his claims or
amending and resubmitting the habeas petition to present only
exhausted claims to the district court.” Rose v.
Lundy, 455 U.S. 509, 510 (1982). A federal court has
discretion to stay a mixed habeas petition to allow a
petitioner to present his unexhausted claims to the state
courts in the first instance and then return to federal court
on a perfected petition. Rhines v. Weber, 544 U.S.
269, 276 (2005). Stay and abeyance, however, is available
only in “limited circumstances, ” such as when
the one-year statute of limitations applicable to federal
habeas actions poses a concern, and when the petitioner
demonstrates “good cause” for the failure to
exhaust state court remedies before proceeding in federal
court, there is no evidence of intentional delay, and the
unexhausted claims are not “plainly meritless.”
Id. at 277.
present case, petitioner does not request a stay, nor does he
show the need for a stay. First, the one-year statute of
limitations, see 28 U.S.C. § 2244(d), does not
pose a problem for petitioner as long as he pursues his state
court remedies promptly. The Michigan Supreme Court denied
leave to appeal on January 3, 2018, People v
Jackson, 501 Mich. 952, 904 N.W.2d 845 (2018), and
denied reconsideration on May 1, 2018. People v.
Jackson, 501 Mich. 1063, 910 N.W.2d 271 (2018). The
one-year limitations period does not begin to run until 90
days later, Jimenez v. Quarterman, 555 U.S. 113,
119-20 (2009); Lawrence v. Florida, 549 U.S. 327,
333 (2007); S.Ct. R. 13(1), on or about July 30, 2018. Thus,
the one-year limitations period has not yet begun to run.
While the time in which a habeas case is pending in federal
court is not statutorily tolled, such time is equitably
tolled by the Court. See Johnson v. Warren, 344
F.Supp.2d 1081, 1088-89 (E.D. Mich. 2004). The petitioner
thus has sufficient time, the full year of the limitations
period, to seek collateral review of his unexhausted claims
in the state courts, and then return to federal court on a
while there is no indication that petitioner has engaged in
“intentionally dilatory tactics, ” he neither
alleges nor establishes good cause for failing to fully
exhaust all of his claims in the state courts before seeking
relief in federal court. Even if appellate counsel was
ineffective during the direct appeal process, petitioner
offers no reason why he was unable to pursue all of his
habeas issues on collateral review in the state courts before
filing his federal petition. Third, based upon the current
record, the Court cannot determine whether the
petitioner's unexhausted claims are “plainly
meritless.” Given such circumstances, a stay is
unwarranted and a non-prejudicial dismissal of the habeas
petition is appropriate. Accordingly, IT IS ORDERED that the
petition is dismissed without prejudice.
FURTHER ORDERED that no certificate of appealability shall
issue and that petitioner may not ...