United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE
2018, Michigan prisoner Isaac Michael Paul Fezzey
("Fezzey") filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254. A Kent County Circuit
Court jury convicted Fezzey of first-degree felony murder,
Mich. Comp. Laws § 750.316(1)(b); armed robbery, Mich.
Comp. Laws § 750.529; first-degree home invasion, Mich.
Comp. Laws § 750.110a(2); unlawful imprisonment, Mich.
Comp. Laws § 750.349b; assault with intent to do great
bodily harm less than murder, Mich. Comp. Laws § 750.84;
and possession of a firearm during the commission of a
felony, Mich. Comp. Laws § 750.227b.
2015, he was sentenced to concurrent terms of life
imprisonment without parole on the murder conviction, 15 to
60 years' imprisonment on the armed robbery conviction, 7
to 20 years' imprisonment on the home invasion
conviction, 5 to 15 years' imprisonment on the unlawful
imprisonment conviction, 5 to 10 years' imprisonment on
the assault conviction, and a consecutive term of 2
years' imprisonment on the felony firearm conviction.
pro se petition, Fezzey raises the following claims: (1) an
ineffective-assistance-of-counsel claim based on his
attorney's failure to suppress damaging statements that
Fezzey gave after allegedly invoking his Fifth Amendment
right to counsel during a custodial interrogation; (2) an
error during jury selection when the prosecutor presented a
hypothetical that allegedly misstated the elements of felony
murder, which improperly diminished the prosecutor's
burden, resulted in plain error, prosecutorial error, or
ineffective assistance of counsel, deprived Fezzey of a fair
trial, and that was not corrected by a jury instruction; and
(3) whether Fezzey acted with specific intent as a principal
or aider and abettor in light of his autistic disorder. ECF
1, PgID 7-8.
reviewing the petition, the Court concludes that Fezzey did
not properly exhaust his state court remedies for his third
claim and thus will dismiss without prejudice the petition
for a writ of habeas corpus. The Court will also deny a
certificate of appealability and leave to proceed in
forma pauperis on appeal.
his convictions and sentencing, Fezzey filed an appeal of
right with the Michigan Court of Appeals raising several
claims of error, including the substance of his first two
habeas claims. The Michigan Court of Appeals denied relief on
those claims and affirmed Fezzey's convictions and
sentences. People v. Fezzey, No. 329361, 2016 WL
7493865 (Mich. Ct. App. Dec. 27, 2016) (unpublished). Fezzey
then filed an application for leave to appeal with the
Michigan Supreme Court, which was denied in a standard order.
People v. Fezzey, 500 Mich. 1060 (2017). Next,
Fezzey dated his federal habeas petition on June 18, 2018.
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. § 2254 must first exhaust all state remedies.
See 28 U.S.C. §§ 2254(b)(1)(A) and (c);
O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)
("[S]tate prisoners must give the state courts one full
fair opportunity to resolve any constitutional issues by
invoking one complete round of the State's established
appellate review process."); Rust v. Zent, 17
F.3d 155, 160 (6th Cir. 1994). A Michigan prisoner must raise
in state court each issue he seeks to present in a federal
prisoner must fairly present the claims to the state courts,
which means he must assert both the factual and legal bases
for the claims. See McMeans v. Brigano, 228 F.3d
674, 681 (6th Cir. 2000); Williams v. Anderson, 460
F.3d 789, 806 (6th Cir. 2006). Further, the prisoner must
present the claims in state courts as federal constitutional
issues. See Koontz v. Glossa, 731 F.2d 365, 368 (6th
Cir. 1984). Finally, the prisoner must present each issue to
the Michigan Court of Appeals and the Michigan Supreme Court
to satisfy the exhaustion requirement. Hafley v.
Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The burden
is on the petitioner to prove exhaustion. Rust, 17
F.3d at 160.
has not met his burden of demonstrating exhaustion of state
court remedies. He did not present his third habeas claim to
the Michigan Court of Appeals. It is unclear whether he
raised it before the Michigan Supreme Court. Nonetheless,
first presenting a claim the Michigan Supreme Court on
discretionary review does not satisfy the exhaustion
requirement. See Castille v. Peoples, 489 U.S. 346,
349 (1989); Hickey v. Hoffner, 701 Fed.Appx. 422,
425 (6th Cir. 2017). Fezzey has thus failed to properly
exhaust one of his three habeas claims in the state courts
before proceeding on federal habeas review.
a federal district court dismisses a "mixed" habeas
petition-one containing both exhausted and unexhausted
claims-"leaving the prisoner with the choice of
returning to state court to exhaust his claims or amending or
resubmitting the habeas petition to present only exhausted
claims to the district court." Rose v. Lundy,
455 U.S. 509, 510 (1982). Although strictly enforced, the
exhaustion requirement is not a jurisdictional prerequisite
for bringing a habeas petition. See, e.g., Granberry v.
Greer, 481 U.S. 129, 134-35 (1987). For example, an
unexhausted claim may be addressed if pursuit of a state
court remedy would be futile, see Witzke v. Withrow,
702 F.Supp. 1338, 1348 (W.D. Mich. 1988), or if the
unexhausted claim is meritless such that addressing it would
be efficient and not offend federal-state comity, see
Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987).
See also 28 U.S.C. § 2254(b)(2) (habeas
petition may be denied on merits despite failure to exhaust
state court remedies).
limited circumstances, however, a federal district court may
stay a mixed-habeas petition to allow the petitioner to
present his unexhausted claims to the state courts and then
return to federal court. See Rhines v. Weber, 544
U.S. 269, 276 (2005). Sufficient limited circumstances
include the tolling of the one-year statute of limitations or
when the petitioner demonstrates "good cause" for
his failure to exhaust and the unexhausted claims are not
"plainly meritless." Id. at 277. In
Rhines, the Supreme Court adopted the stay and
abeyance procedure to specifically address the situation when
outright dismissal of a habeas petition could jeopardize the
timeliness of a future petition following the exhaustion of
state remedies. Id. at 275 (noting that if the court
dismissed the habeas petition "close to the end of the
1-year period, the petitioner's chances of exhausting his
claims in state court and refiling in federal court before
the limitation period [expired would be] slim"). Stay
and abeyance is thus generally reserved for cases when the
AEDPA's one-year limitations ...