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
J. TARNOW UNITED STATES DISTRICT JUDGE.
a habeas case brought pursuant to 28 U.S.C. § 2254.
Michigan prisoner Ezra Rodriguez was convicted of three
counts of first-degree criminal sexual conduct, armed
robbery, kidnapping, assault with a dangerous weapon, and
possession of a firearm during the commission of a felony
pursuant to a plea in the Wayne County Circuit Court and was
sentenced to concurrent terms of 23 to 25 years imprisonment
and a consecutive term of two years imprisonment on those
convictions in 2016. In his pro se habeas petition,
he raises claims concerning the validity of his sentences and
the appointment of counsel (or lack thereof) in his state
after the filing of a habeas petition, 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 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 the petition.
Id., see also 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 federal district court is authorized to summarily
dismiss a habeas petition, if it plainly appears from the
face of the petition and any attached exhibits that the
petitioner is not entitled to federal habeas relief.
McFarland v. Scott, 512 U.S. 849, 856 (1994);
Carson v. Burke, 178 F.3d 434, 436 (6th Cir. 1999);
Rule 4, Rules Governing § 2254 Cases.
undertaking such preliminary review, the Court concludes that
Petitioner has not exhausted state court remedies as to his
third habeas claim and 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.
pleaded guilty to the above offenses, as well to several
charges arising from an earlier case in the Wayne County
Circuit Court. Petitioner was sentenced in both cases on May
11, 2016. Following his plea and sentencing, Petitioner filed
an application for leave to appeal with the Michigan Court of
Appeals asserting that he is entitled to resentencing where
his sentence is disproportionately harsh and unreasonable and
a violation of his state and federal constitutional rights.
The Michigan Court of Appeals denied leave to appeal for lack
of merit in the grounds presented. People v.
Rodriguez, No. 339141 (Mich. Ct. App. Oct. 17, 2017)
(unpublished). Petitioner filed an application for leave to
appeal with the Michigan Supreme Court, which was denied in a
standard order. People v. Rodriguez, 501 Mich. 1062,
910 N.W.2d 293 (May 1, 2018).
dated his federal habeas petition on April 24, 2019. He
raises the following claims: (1) disproportionate sentencing,
(2) due process right to be sentenced using accurate
information, and (3) was only appointed counsel for one out
of two cases.
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. §2254 must first exhaust all available state
court remedies. See 28 U.S.C. §§
2254(b)(1)(A) and (c); 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). A
Michigan prisoner must raise each issue he or she seeks to
present in a federal habeas proceeding to the state courts,
including both the Michigan Court of Appeals and the Michigan
Supreme Court, to satisfy the exhaustion requirement. See
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 claims must be “fairly presented” to
the state courts, meaning that the prisoner 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 presented to the state courts as
federal constitutional issues. Koontz v. Glossa, 731
F.2d 365, 368 (6th Cir. 1984). The burden is on the
petitioner to prove exhaustion. Rust, 17 F.3d at
fails to meet his burden of demonstrating exhaustion of state
court remedies. Although petitioner indicates at one point in
the petition that he exhausted his third claim in the state
courts, he attached to his petition a copy of the appeal
brief filed by his appellate counsel with the Michigan Court
of Appeals and a copy of the pro se application for
leave to appeal that petitioner filed with the Michigan
Supreme Court after the Michigan Court of Appeals denied him
leave to appeal. A review of both pleadings shows that
petitioner did not present his third habeas claim to the
state courts before instituting this federal habeas action.
Petitioner also elsewhere in his petition suggests that his
third claim is based on newly discovered evidence, which is
further evidence that this claim is unexhausted. Generally, a
federal district court should dismiss a “mixed”
petition for writ of habeas corpus, that is, one containing
both exhausted and unexhausted claims, “leaving the
prisoner with the choice of returning to state court to
exhaust his claims or amending and resubmitting the habeas
petition to present only exhausted claims to the district
court.” Rose v. Lundy, 455 U.S. 509, 510
(1982); see also Rust, 17 F.3d at 160. While the
exhaustion requirement is strictly enforced, it is not a
jurisdictional prerequisite for bringing a habeas petition.
Granberry v. Greer, 481 U.S. 129, 134-35 (1987). For
example, an unexhausted claim may be addressed if pursuit of
a state court remedy would be futile, Witzke v.
Withrow, 702 F.Supp. 1338, 1348 (W.D. Mich. 1988), or if
the unexhausted claim is meritless such that addressing it
would be efficient and not offend federal-state comity.
Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir.
1987); see also 28 U.S.C. § 2254(b)(2)(habeas
petition may be denied on merits despite failure to exhaust
state court remedies).
a federal district court has discretion to stay a mixed
habeas petition to allow a petitioner to present his or her
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.
In Rhines, the Supreme Court adopted the stay and
abeyance procedure to specifically address the situation when
outright dismissal of a habeas petition could jeopardize the
timeliness of a future petition following the exhaustion of
state remedies. Id. at 275 (noting that if the court
dismissed the habeas petition “close to the end of the
1-year period, the petitioner's chances of exhausting his
claims in state court and refiling in federal court before
the limitation period [expired would be] slim”). Stay
and abeyance is thus generally reserved for cases where the
AEDPA's one-year limitations period is likely to expire
before a habeas petitioner can return to state court to
exhaust additional claims and then return to federal court on
an amended petition. See, e.g., Moss v. Hofbauer,
No. 07-10687, 2007 WL 317968, *2-3 (E.D. Mich. Oct. 16,
case, Petitioner has not exhausted his third habeas claim. He
has available remedies in the Michigan courts by which to do
so before proceeding in federal court. For example, 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 unexhausted issue in the state appellate courts as
the one-year statute of limitations applicable to federal
habeas actions, see 28 U.S.C. § 2244(d), does
not pose a problem for Petitioner as long as he pursues his
state court remedies in a prompt fashion. Petitioner's
convictions became final 90 days after the conclusion of
direct appeal, see Lawrence v. Florida, 549 U.S.
327, 333 (2007); Bronaugh v. Ohio, 235 F.3d 280, 285
(6th Cir. 2000); S.Ct. R. 13, on or about July 30, 2018. The
one-year period began running the next day and ran until
April 24, 2019 when Petitioner dated his federal habeas
petition for submission to prison officials for mailing.
Accordingly, just under nine months of the one-year period
had expired when he instituted this action. While the time in
which his habeas case has been pending in federal court is
not statutorily tolled, see Duncan v. Walker, 533
U.S. 167, 181-82 (2001) (holding that a federal habeas
petition is not an “application for State
post-conviction or other collateral review” within the
meaning of 28 U.S.C. § 2244(d)(2) so as to statutorily
toll the limitations period), such time is equitably tolled
by the Court. See, e.g., Johnson v. Warren, 344
F.Supp.2d 1081, 1088-89 (E.D. Mich. 2004). The one-year
period will also be tolled while any properly filed state
post-conviction or ...