United States District Court, W.D. Michigan, Northern Division
L. Maloney United States District Judge
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Promptly after the filing of a petition
for habeas corpus, the Court must 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 28 U.S.C. § 2243. If so, the
petition must be summarily dismissed. Rule 4; see Allen
v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district
court has the duty to “screen out” petitions that
lack merit on their face). A dismissal under Rule 4 includes
those 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). After undertaking the review required
by Rule 4, the Court will dismiss the petition without
prejudice for failure to exhaust available state-court
Edward Gordon Newhouse is incarcerated with the Michigan
Department of Corrections at Baraga Correctional Facility
(AMF) in Baraga, Baraga County, Michigan. Following a jury
trial in the Kalamazoo County Circuit Court, Petitioner was
convicted of assault with intent to rob while armed, armed
robbery, and felony firearm. On August 29, 2016, the state
court sentenced Petitioner to 51 to 85 months of
2018, Petitioner filed his first habeas corpus petition,
which the Court dismissed without prejudice for failure to
exhaust available state-court remedies. See Newhouse v.
Lesatz, No. 2:18-cv-82 (W.D. Mich. Oct. 10, 2018).
April 23, 2019, the Court received Petitioner's second
habeas corpus petition. In his latest petition, Petitioner
asks the Court to proceed with the twelve grounds for relief
identified in his earlier habeas corpus petition. Petitioner
contends that he filed a motion for relief from judgment in
state court that was denied on April 10, 2019.
Exhaustion of State Court Remedies
the Court may grant habeas relief to a state prisoner, the
prisoner must exhaust remedies available in the state courts.
28 U.S.C. § 2254(b)(1); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires
a petitioner to “fairly present” federal claims
so that state courts have a “fair opportunity” to
apply controlling legal principles to the facts bearing upon
a petitioner's constitutional claim. Id. at 844,
848; see also Picard v. Connor, 404 U.S. 270, 275-77
(1971); Duncan v. Henry, 513 U.S. 364, 365 (1995);
Anderson v. Harless, 459 U.S. 4, 6 (1982). To
fulfill the exhaustion requirement, a petitioner must have
fairly presented his federal claims to all levels of the
state appellate system, including the state's highest
court. O'Sullivan, 526 U.S. at 845;
Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009);
Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.
1990). The district court can and must raise the exhaustion
issue sua sponte when it clearly appears that habeas
claims have not been presented to the state courts. See
Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987);
Allen v. Perini, 424 F.2d 134, 138-39 (6th Cir.
bears the burden of showing exhaustion. See Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner has
not exhausted any of his grounds for relief. As he indicated
in his previous habeas petition, he did not raise the twelve
issues identified in that petition during his direct appeal.
Moreover, records from the Michigan appellate courts indicate
that he has not appealed the denial of his motion for relief
from judgment. Thus, he has not yet presented his issues to
the Michigan Court of Appeals or to the Michigan Supreme
applicant has not exhausted available state remedies if he
has the right under state law to raise, by any available
procedure, the question presented. 28 U.S.C. § 2254(c).
Petitioner has at least one available procedure by which to
raise the issues he has presented in this application. He may
appeal the circuit court's order denying his motion for
relief from judgment. He has six months from the date of the
circuit court's order to file a delayed application for
leave to appeal with the Michigan Court of Appeals.
See Mich. Ct. R. 7.203(G)(3). Therefore, the Court
concludes that he has at least one available state remedy. To
properly exhaust his claim, Petitioner must file an
application for leave to appeal in the Michigan Court of
Appeals, raising the same twelve grounds for relief that he
presented in his motion for relief from judgment in the
Kalamazoo County Circuit Court. If his appeal is denied by
the Michigan Court of Appeals, he must appeal that decision
to the Michigan Supreme Court, raising the same twelve
grounds for relief. O'Sullivan, 526 U.S. at 845;
Hafley, 902 F.2d at 483 (“‘[P]etitioner
cannot be deemed to have exhausted his state court remedies
as required by 28 U.S.C. § 2254(b) and (c) as to any
issue, unless he has presented that issue both to the
Michigan Court of Appeals and to the Michigan Supreme
Court.'”) (citation omitted).
application is subject to the one-year statute of limitations
provided in 28 U.S.C. § 2244(d)(1). Under that
provision, the one-year limitations period runs from
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
Petitioner appealed his conviction to the Michigan Court of
Appeals and the Michigan Supreme Court. The Michigan Supreme
Court denied his appeal on May 1, 2018. Petitioner did not
petition for certiorari to the United States Supreme Court,
though the ninety-day period in which he could have sought
review in the United States Supreme Court is counted under
§ 2244(d)(1)(A). See Bronaugh v. Ohio, 235 F.3d
280, 283 (6th Cir. 2000). The ninety-day period expired on
Monday, July 30, 2018. Accordingly, absent tolling,
Petitioner would have one year, until July 30,
2019, in which to file his habeas petition.
Thus, the statute of limitations period has not yet expired.
addition, if Petitioner timely files an appeal from the
denial of his motion for relief from judgment with the
Michigan Court of Appeals, and then properly files an appeal
with the Michigan Supreme Court after a decision by the
Michigan Court of Appeals, the statute of limitations period
will remain “tolled” for as long as his appeal is
pending in the Michigan appellate courts. Under 28 U.S.C.
§ 2244(d)(2), the running of the statute of limitations
is tolled while “a properly filed application for State
post-conviction or other collateral review with respect to
the pertinent judgment or claim is pending.” The
tolling period starts at the filing of an application for
post-conviction relief and runs until a decision is issued by
the state supreme court. Lawrence v. Florida, 549
U.S. 327 (2007). The statute is not tolled during the time
that a petitioner petitions for writ of certiorari in the
United States Supreme Court. Id. at 332.
other words, if Petitioner diligently appeals the denial of
his motion for relief from judgment and promptly returns to
this Court after the Michigan Supreme Court issues its
decision, he is not in danger of running afoul of the statute
of limitations. This Court cannot grant Petitioner any relief
for his ...