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Weaver v. Chapman

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

May 8, 2019

BRUCE ALAN WEAVER, Petitioner,
v.
WILLIS CHAPMAN, Respondent.

          OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR A WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE

          HONORABLE GEORGE C. STEEH UNITED STATES DISTRICT JUDGE

         Bruce Alan Weaver, (“Petitioner”), confined at the Thumb Correctional Facility in Lapeer, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for armed robbery, M.C.L. 750.529. Respondent filed an answer to the petition for a writ of habeas corpus. As part of the answer, respondent argues that the petition is subject to dismissal because it contains a claim which has not been properly exhausted with the state courts. In lieu of dismissing the petition without prejudice, this Court holds the petition in abeyance and stays the proceedings under the terms outlined in this opinion to permit petitioner to return to the state courts to exhaust his additional claims. If this fails, the petition will be dismissed without prejudice.

         I. Background

         Petitioner was convicted following a jury trial in the Eaton County Circuit Court. Petitioner submitted a brief on appeal raising four claims.[1]Defendant argued 1) that the prosecution failed to rebut the defendant’s prima facia case that he acted under duress, 2) the performance of his first trial attorney was ineffective because he failed to investigate a defense of duress, 3) that the trial court erred by instructing the jury that a defense of duress only applies in situations that “did not arise because of the defendant’s fault or negligence,” and 4) that the trial court judge improperly based petitioner’s sentence on his refusal to admit guilt. Petitioner also filed a pro se supplemental Standard 4 brief pursuant to Administrative Order No. 2004-6, in which he argued that his initial trial counsel provided ineffective assistance because he had a conflict of interest, and that he was denied the effective assistance of trial counsel when counsel did not obtain statements from witnesses that would have corroborated his theory that he was acting under a serious threat from dangerous drug dealers when he decided to rob a business.[2]

         The Michigan Court of Appeals affirmed petitioner’s conviction. People v. Weaver, No. 326468, 2016 WL 2943239 (Mich. Ct. App. May 19, 2016).

         Petitioner filed a pro se application for leave to appeal to the Michigan Supreme Court and raised the same issues raised before the Michigan Court of Appeals. Petitioner also added an ineffective assistance of appellate counsel claim.[3] The Michigan Supreme Court granted petitioner’s motion to add issues but denied the motions to expand the record and for remand. The application for leave to appeal was denied. People v. Weaver, 500 Mich. 924, 888 N.W.2d 112 (2017).

         Petitioner has now filed a petition for a writ of habeas corpus, seeking relief on the following grounds:

I. Petitioner was deprived of his Sixth Amendment rights to both the effective assistance of counsel and compulsory process by his first appointed trial attorney when:
(A) counsel failed to investigate the only plausible line of defense by refusing to contact and interview two witnesses who were crucial to petitioner’s defense in spite of petitioner’s repeated requests for assistance and when
(B) counsel made no attempt to obtain expert investigative assistance he admittedly knew could be appointed upon request in order to compel the attendance of witnesses when fear precluded him from contacting them himself[.]
II. Petitioner was deprived of his Sixth Amendment right to the effective assistance of appellate counsel when counsel relied on the existing record alone to raise a claim of ineffective assistance of trial counsel and neglected to file a separate motion to remand for an evidentiary hearing with an affidavit in support as required by Michigan Court Rule 7.211(c)(1)(a)&( ii)[.]

         II. Discussion

         Respondent argues that petitioner’s habeas application is subject to dismissal because petitioner’s second claim alleging ineffective assistance of appellate counsel has not been properly exhausted with the state courts.

         As a general rule, a state prisoner who seeks federal habeas relief must first exhaust his available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and ©. See Picard v. Connor, 404 U. S. 270, 275-78 (1971). Although exhaustion is not a jurisdictional issue, “it is a threshold question that must be resolved” before a federal court can reach the merits of any claim contained in a habeas petition. See Wagner v. Smith,581 F.3d 410, 415 (6th Cir. 2009). Therefore, each claim must be reviewed by a federal court for exhaustion before any claim may be reviewed on the merits by a federal court. Id. Federal district courts normally must dismiss mixed habeas petitions which contain both exhausted and unexhausted claims. See Pliler v. Ford,542 U.S. 225, 230 (2004)(citing Rose v. Lundy,455 U.S. 509, 510, 522 (1982)). A habeas petitioner has the burden of proving that he exhausted his ...


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