United States District Court, E.D. Michigan, Southern Division
DERRICK W. MASON, III, Petitioner,
v.
WARDEN PAT WARREN, Respondent.
ORDER DIRECTING PETITIONER TO CLARIFY THE NUMBER AND
NATURE OF HIS ARGUMENTS AND TO INFORM THE COURT HOW HE WANTS
TO PROCEED
SEAN
F. COX, U.S. DISTRICT JUDGE
On
February 13, 2019, petitioner Derrick W. Mason, III, filed a
pro se habeas corpus petition challenging his
conviction for child abuse on several grounds. Because it is
not clear from the petition whether Petitioner exhausted
state remedies for all his claims, the Court is ordering him
to provide the Court with more information and to explain how
he wants to proceed.
I.
Background
On July
26, 2017, Petitioner pleaded guilty in Shiawassee County
Circuit Court to first-degree child abuse, Mich. Comp. Laws
§ 750.136b(2), and on September 15, 2017, the trial
court sentenced Petitioner to prison for fifteen to fifty
years. See Pet., docket no. 1, PageID. 1, 22. The
Michigan Court of Appeals denied leave to appeal for lack of
merit in the grounds presented to the court, and on October
30, 2018, the Michigan Supreme Court denied leave to appeal
because it was not persuaded to review the questions
presented to it. See People v. Mason, No. 342948
(Mich. Ct. App. Apr. 23, 2018); People v. Mason, 503
Mich. 888; 919 N.W.2d 252 (2018).
On
February 13, 2019, Petitioner filed his habeas corpus
petition. In his form petition, he raises four claims about
the scoring of the Michigan sentencing guidelines.
See Pet., docket no. 1, PageID. 5-10. In a
handwritten attachment, under the heading “Issue
Preservation, ” Petitioner states that he is also
raising the issue of his trial attorney's failure to (i)
challenge statements made by the victim's family and (ii)
acquire a statement from Petitioner's nephew.
Id., PageID. 19. On the following page, Petitioner
“argues that [the] trial court should have offered a
lesser charge.” Id., PageID. 20.
II.
Discussion
A
preliminary question is whether Petitioner exhausted state
remedies for all his claims. The exhaustion doctrine requires
state prisoners to give the state courts an opportunity to
act on their claims before they present their claims to a
federal court in a habeas corpus petition. See 28
U.S.C. § 2254(b)(1), (c); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). This requirement is
satisfied if the prisoner “invok[es] one complete round
of the State's established appellate review process,
” including a petition for discretionary review in the
state supreme court “when that review is part of the
ordinary appellate review procedure in the State.”
O'Sullivan, 526 U.S. at 845, 847. Thus, to
properly exhaust state remedies, a prisoner must fairly
present the factual and legal basis for each of his claims to
the state court of appeals and to the state supreme court
before raising the claims in a federal habeas corpus
petition. Wagner v. Smith, 581 F.3d 410, 414-15 (6th
Cir. 2009).
When
faced with a “mixed petition” of exhausted and
unexhausted claims, a federal district court has four
options. It may “(1) stay the entire petition; (2)
dismiss the entire petition without prejudice; (3) deny the
entire petition on the merits; or (4) dismiss the unexhausted
claims and proceed with the exhausted ones.”
Swanson v. DeSantis, 606 F.3d 829, 831 (6th Cir.
2010).
Petitioner
alleges in his habeas petition that he raised his sentencing
claims on appeal from his convictions. See Pet.,
docket no. 1, PageID. 5-10. It is not clear from the petition
or from the state courts' orders whether Petitioner also
exhausted state remedies for his arguments about trial
counsel and the lack of an opportunity to plead guilty to a
less serious offense. Accordingly, the Court orders
Petitioner to clarify the number and nature of his claims and
to inform the Court how he wants to proceed. In a written
response to this order, Petitioner shall do the following:
(1) list all the claims that he wants the court to consider;
(2) as to each claim, indicate whether he raised the claim in
the Michigan Court of Appeals and in the Michigan Supreme
Court; and
(3) if any of the claims were not raised in both the Michigan
Court of Appeals and the Michigan Supreme Court, inform the
Court whether he wants the Court to (1) stay the petition
while he pursues additional state remedies for his
unexhausted claims, (2) dismiss the petition without
prejudice; (3) deny the petition on the merits; or (4)
dismiss the unexhausted claims and proceed with the exhausted
ones.
Petitioner
shall have thirty (30) days from the date of this order to
file his written response. Failure to comply with this order
could result in ...