United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO
DISMISS AND DENYING CERTIFICATE OF APPEALABILITY
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
has filed a pro se petition for a writ of habeas
corpus under 28 U.S.C. § 2254, challenging his state
court convictions for second-degree criminal sexual conduct,
four counts of using a computer to commit a crime, three
counts of possession of child sexually abusive material, and
one count of capturing image of unclothed person. Respondent
has filed a motion to dismiss on the ground that two of the
three claims raised in the petition have not been exhausted.
The Court shall grant the motion and dismiss the petition
pleading no contest to these charges, petitioner was
sentenced to concurrent prison terms of ten to thirty years
for second-degree criminal sexual conduct, four to ten years
for capturing an image of an unclothed person, four to
fourteen years for each of his convictions for using a
computer to commit a felony, and three to eight years for
each of his convictions for child sexually abusive material.
filed a delayed application for leave to appeal in the
Michigan Court of Appeals raising the following two claims:
(i) Petitioner's sentence violated the Sixth Amendment
and People v. Lockridge, 498 Mich. 358 (2015); and
(ii) the trial court abused its discretion by imposing
excessive court costs on Petitioner. The Michigan Court of
Appeals denied leave to appeal “for lack of merit in
the grounds presented.” People v. Haviland,
No. 335944 (Mich. Ct. App. Jan. 5, 2017). Petitioner filed an
application for leave to appeal in the Michigan Supreme Court
raising the following three claims: (i) the trial court
failed to honor the Cobbs agreement; (ii)
Petitioner's juvenile records were used at sentencing;
and (iii) Petitioner is mentally challenged and is dependant
on daily medications. The Michigan Supreme Court denied leave
to appeal. People v. Haviland, 501 Mich. 925 (Mich.
Nov. 29, 2017).
filed the instant habeas petition on May 31, 2108. He raises
the following three claims:
Petitioner entered into a verbal Cobbs agreement and
sentencing guidelines were not followed or honored.
Petitioner's history of mental illness and juvenile
records were used in sentencing.
Petitioner is mentally challenged and depends on daily
medications to stay stable.
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. § 2254 must first exhaust all state remedies.
See O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999). To exhaust state court remedies, petitioner must
present the claim “to every level of the state courts
in one full round.” Ambrose v. Romanowski, 621
Fed.Appx. 808, 814 (6th Cir. 2015). It is petitioner's
burden to show that state court remedies have been exhausted.
See Nali v. Phillips, 681 F.3d 837, 852 (6th Cir.
raised his second and third claims for the first time in his
application for leave to appeal in the Michigan Supreme
Court. Raising a new claim for the first time with a
state's highest court on discretionary review does not
constitute fair presentation of the claim to the state
courts. See Skinner v. McLemore, 425 Fed.Appx. 491,
494 (6th Cir. 2011) (citing Castille v. Peoples, 489
U.S. 346, 349 (1989)). A prisoner must comply with the
exhaustion requirement as long as there is still a state
court procedure available for him to do so. See Adams v.
Holland, 330 F.3d 398, 401 (6th Cir. 2003). In the
present case, an unexhausted procedure is available.
Petitioner may file a motion for relief from judgment in the
trial court under Michigan Court Rule 6.502. If that motion
is denied, he may seek review by the Michigan Court of
Appeals and the Michigan Supreme Court by filing an
application for leave to appeal. See MCR 6.509,
state courts must first be given a fair opportunity to rule
upon petitioner's habeas claims before he may present
those claims to this Court. Otherwise, this Court cannot
apply the habeas standard of 28 U.S.C. § 2254.
Furthermore, the state court proceedings may provide
petitioner the relief he seeks, thereby mooting the federal
questions presented. Non-prejudicial dismissal of the
petition is warranted under such circumstances.