United States District Court, W.D. Michigan, Southern Division
T. Neff 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
Petitioner Jason Eugene Gates is incarcerated with the
Michigan Department of Corrections at the Oaks Correctional
Facility (ECF) in Manistee, Michigan. Following a jury trial
in the Wayne County Circuit Court, Petitioner was convicted
of assault with intent to do great bodily harm (AGBH), Mich.
Comp. Laws § 750.84, and felony firearm, second offense,
Mich. Comp. Laws § 750.227b. On April 18, 2017, the court
sentenced Petitioner to a sentence of 4 years, 2 months to 10
years for AGBH consecutive to a sentence of 5 years for
felony firearm-second offense. (J. of Sentence, ECF No. 1-1,
April 4, 2019, Petitioner filed his habeas corpus petition.
Under Sixth Circuit precedent, the application is deemed
filed when handed to prison authorities for mailing to the
federal court. Cook v. Stegall, 295 F.3d 517, 521
(6th Cir. 2002). Petitioner placed his petition in the prison
mailing system on April 4, 2019. (Pet., ECF No. 1, PageID.6.)
petition raises one ground for relief: there was insufficient
evidence to permit a jury to find Petitioner guilty of the
charged offenses beyond a reasonable doubt. (Pet., ECF No. 1,
PageID.2-3.) Petitioner, by way of a motion for stay, notes
his intention to raise two additional issues: ineffective
assistance of trial counsel and ineffective assistance of
appellate counsel. (ECF No. 2.)
Court construes Petitioner's motion for stay first as a
motion to amend his petition to add the issues regarding
ineffective assistance of trial and appellate counsel.
Petitioner may amend the petition once as a matter of course,
without permission of the trial court under Federal Rule of
Civil Procedure 15(a), made applicable to habeas actions by
28 U.S.C. § 2242. Mayle v. Felix, 545 U.S. 644
(2005). Accordingly, the Court will consider the issues
Petitioner intends to raise in the state court as part of the
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
alleges that he raised his insufficient evidence claim in the
Michigan Court of Appeals and the Michigan Supreme Court.
Petitioner acknowledges, however, that he has not raised his
ineffective assistance claims in either Michigan appellate
court. Indeed, he seeks a stay of these proceedings so that
he might return to the Wayne County Circuit Court and raise
these issues for the first time by way of a motion for relief
from judgment under Michigan Court Rule 6.500 et
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
file a motion for relief from judgment under Mich. Ct. R.
6.500 et seq. Under Michigan law, one such motion
may be filed after August 1, 1995. Mich. Ct. R. 6.502(G)(1).
Petitioner has not yet filed his one allotted motion.
Therefore, the Court concludes that he has at least one
available state remedy. To properly exhaust his ineffective
assistance claims, Petitioner must file a motion for relief
from judgment in the Wayne County Circuit Court. If his
motion is denied by the circuit court, Petitioner must appeal
that decision to the Michigan Court of Appeals and the
Michigan Supreme Court. 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
Petitioner has one claim that is exhausted and two that are
not, his petition is “mixed.” Under Rose v.
Lundy, 455 U.S. 509, 522 (1982), district courts are
directed to dismiss mixed petitions without prejudice in
order to allow petitioners to return to state court to
exhaust remedies. However, since the habeas statute was
amended to impose a one-year statute of limitations on habeas
claims, see 28 U.S.C. § 2244(d)(1), dismissal
without prejudice often effectively precludes future federal
habeas review. This is particularly true after the Supreme
Court ruled in Duncan v. Walker, 533 U.S. 167,
181-82 (2001), that the limitations period is not tolled
during the pendency of a federal habeas petition. As a
result, the Sixth Circuit adopted a stay-and-abeyance
procedure to be applied to mixed petitions. See Palmer v.
Carlton, 276 F.3d 777, 781 (6th Cir. 2002). In
Palmer, the Sixth Circuit held that when the
dismissal of a mixed petition could jeopardize the timeliness
of a subsequent petition, the district court should dismiss
only the unexhausted claims and stay further proceedings on
the remaining portion until the petitioner has exhausted his
claims in the state court. Id.; see also Rhines
v. Weber, 544 U.S. 269, 277 (2007) (approving
stay-and-abeyance procedure); Griffin v. Rogers, 308
F.3d 647, 652 n.1 (6th Cir. 2002).
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 application on February 4, 2019. 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 May 5, 2019. Accordingly, absent tolling,
Petitioner would have one year, ...