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
VICTORIA A. ROBERTS UNITED STATES DISTRICT JUDGE.
prisoner Marvin Louis Peats (“Petitioner”),
currently confined at the Saginaw Correctional Facility in
Freeland, Michigan, filed a pro se Petition for a Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging
his Kent County Circuit Court conviction for third-degree
criminal sexual conduct for which the Court sentenced him as
a fourth habitual offender to 17 to 40 years in prison.
Petitioner raises claims concerning the sufficiency of the
evidence, the notice of the charges against him, and the
effectiveness of defense counsel at sentencing.
reasons stated here, the Court dismisses without prejudice
the Petition for a Writ of Habeas Corpus. The Court also
denies a Certificate of Appealability and denies leave to
proceed in forma pauperis on appeal.
habeas petition is filed, the Court must promptly undertake a
preliminary review of the petition to determine whether
“it plainly appears from the face of the petition and
any exhibits annexed to it that the petitioner is not
entitled to relief in the district court.” Rule 4,
Rules Governing § 2254 Cases; see also 28 U.S.C. §
2243. If, after preliminary consideration, the Court
determines that the petitioner is not entitled to relief, the
Court must summarily dismiss it. Id., Allen v.
Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district
court has duty to “screen out” petitions that
lack merit on their face). A dismissal under Rule 4 includes
petitions which raise legally frivolous claims, as well as
those containing factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434,
436-37 (6th Cir. 1999).
well-settled that a state 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) (“state
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). 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); see also
Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006)
(citing McMeans). The claims must also be raised in
the state courts as federal constitutional issues. Koontz
v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). A Michigan
prisoner must raise each issue he seeks to present in a
federal habeas proceeding to both 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); 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
fails to meet his burden. The record indicates that he raised
his habeas claims on direct appeal before the Michigan Court
of Appeals and was denied relief. People v. Peats,
No. 334608, 2017 WL 4557651 (Mich. Ct. App. Oct. 12, 2017).
Petitioner admits, however, that he did not timely file an
application for leave to appeal with the Michigan Supreme
Court. He thus failed to fully exhaust state court remedies
before seeking federal habeas relief.
has an available state court remedy to challenge his
conviction and sentence which must be exhausted before he
seeks federal habeas review. He may file a motion for relief
from judgment pursuant to Michigan Court Rule 6.500 with the
state trial court and then pursue his claims through both of
the state appellate courts as necessary. Federal law provides
that a habeas petitioner is only entitled to relief if he can
show that the state court adjudication of his claims resulted
in a decision that was contrary to, or involved an
unreasonable application of, clearly established federal law
as determined by the Supreme Court of the United States. 28
U.S.C. § 2254(d). The state courts must first be given a
fair opportunity to rule upon Petitioner's claims before
he can present them in federal court. Otherwise, the Court
cannot apply the standard found at 28 U.S.C. § 2254.
federal court has discretion to stay a mixed habeas petition
which contains both exhausted and unexhausted claims, to
allow a petitioner to present the 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 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 and the
unexhausted claims are not “plainly meritless.”
Id. at 277.
does not request a stay nor indicate that his circumstances
justify a stay. Moreover, a stay is inappropriate. None of
Petitioner's habeas claims is exhausted. The Court cannot
ordinarily stay a petition containing only unexhausted
claims. In such a case, a non-prejudicial dismissal of the
petition is appropriate. See Hines v. Romanowski,
No. 2:14-CV-13983, 2014 WL 5420135, *2 (E.D. Mich. Oct. 22,
2014) (dismissing case where all claims were unexhausted);
Wilson v. Warren, No. 06-CV-15508, 2007 WL 37756, *2
(E.D. Mich. Jan. 4, 2007) (“a stay of petitioner's
application for a writ of habeas corpus would be
inappropriate, because all of petitioner's claims are
unexhausted and thus, the Court lacks jurisdiction over the
petition while the petitioner pursues his claims in state
court”); accord Rasberry v. Garcia, 448 F.3d
1150, 1154 (9th Cir. 2006) (Rhines stay and abeyance
rule does not apply to a petition alleging only unexhausted
claims); United States v. Hickman, 191 Fed.Appx.
756, 757 (10th Cir. 2006) (“[t]raditionally, when a
petition contains entirely unexhausted state claims, the
petition would be dismissed without prejudice....”);
McDonald v. Bell, No. 1:06-cv-406, 2009 WL 1525970
(W.D. Mich. June 1, 2009) (concluding that the stay and
abeyance procedure does not apply to a petition containing
only unexhausted claims); Mimms v. Russell, No.
1:08-cv-79, 2009 WL 890509 (S.D. Ohio March 31, 2009) (habeas
petition subject to dismissal where petitioner did not
exhaust state court remedies on any of his habeas claims);
Murphy v. Feneis, No. 07-153, 2007 WL 2320540, *7
(D. Minn. Aug.10, 2007) (“Given the narrow issue before
the Supreme Court regarding mixed petitions, this Court
refuses to extend Rhines to allow a court to stay a
habeas petition, so that a petitioner can exhaust his state
remedies, where, as here, the petition contains only
unexhausted claims.”). Given such circumstances, a stay
is unwarranted and a non-prejudicial dismissal of the habeas
petition is appropriate.
did not properly exhaust his habeas claims in the state
courts; a stay of the proceedings is unwarranted.
Accordingly, the Court DISMISSES WITHOUT
PREJUDICE the Petition for a Writ of Habeas Corpus.
The Court makes no determination as to the merit of
Petitioner's habeas claims.
Petitioner may appeal this decision, a Certificate of
Appealability (“COA”) must issue. 28 U.S.C.
§ 2253(c)(1)(a); Fed. R. App. P. 22(b). A COA may issue
only if the applicant makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). When a court denies relief on procedural grounds
without addressing the merits, a COA should issue if it is
shown that jurists of reason would find it debatable whether
the petitioner states a valid claim of the denial of a
constitutional right, and that jurists of reason would find
it debatable whether the court was correct in its procedural
ruling. Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). Reasonable jurists could not debate the correctness
of the Court's ...