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Fezzey v. Winn

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

July 19, 2018

ISAAC MICHAEL PAUL FEZZEY, Petitioner,
v.
THOMAS WINN, Respondent.

          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

         In July 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.

         In 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.

         BACKGROUND

         In his 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.

         Upon 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.

         PROCEDURAL HISTORY

         Following 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.

         DISCUSSION

         A 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 habeas proceeding.

         The 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.

         Fezzey 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.

         Generally, 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).

         In 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 ...


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