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Maison v. Brewer

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

June 11, 2019

HILERY NOEL MAISON, Petitioner,
v.
SHAWN BREWER, Respondent,

          OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

          GERSHWIN A. DRAIN, UNITED STATES DISTRICT COURT JUDGE

         Hilery Noel Maison, (“Petitioner”), confined at the Huron Valley Women's Correctional Facility in Ypsilanti, Michigan, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging her convictions for first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b), two counts of torture, Mich. Comp. Laws § 750.85, and two counts of first-degree child abuse, Mich. Comp. Laws § 750.136b(2). For the reasons that follow, the Petition for Writ of Habeas Corpus is SUMMARILY DISMISSED WITHOUT PREJUDICE.

         I. Background

         Petitioner and her husband were convicted following a jury trial in the St. Clair County Circuit Court. Petitioner's conviction was affirmed on appeal. People v. Maison, No. 332162, 2017 WL 5162310 (Mich.Ct.App. Nov. 7, 2017); leave den. 501 Mich. 1062, 910 N.W.2d 275 (2018).

         Petitioner seeks a writ of habeas corpus on the following grounds:

I. There was insufficient evidence to convict Hilery Maison of the charges to felony murder as to [Mac. M.] and torture and first degree child abuse as to both Mac. M and Mak. M. [i]n violation of her state and federal constitutional right to due process.[1]
II. Mrs. Maison's Federal and State constitutional rights to the effective assistance of counsel were violated and she is entitled to a new trial where her trial counsel failed to request instructions on causation and/or where she failed to request instructions on the necessarily included lesser offense of involuntary manslaughter.

         Respondent moved to dismiss the petition on the ground that Petitioner's second claim was not exhausted with the state courts.

         II. Discussion

         The instant Petition is subject to dismissal because Petitioner's second claim has yet to be exhausted with the state courts.

         As a general rule, a state prisoner seeking federal habeas relief must first exhaust his or her available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and (c). See Picard v. Connor, 404 U.S. 270, 275-78 (1971). The Antiterrorism and Effective Death Penalty Act (AEDPA) preserves the traditional exhaustion requirement, which requires the dismissal of a habeas petition that contains claims that a petitioner has a right to raise in the state courts but has failed to do so. See Welch v. Burke, 49 F.Supp.2d 992, 998 (E.D. Mich. 1999). Although exhaustion is not a jurisdictional matter, “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). Each habeas claim must be reviewed by a federal court for exhaustion before any claim may be adjudicated on the merits by a federal court. Id. Federal district courts 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)); see also Welch, 49 F.Supp.2d at 998. A habeas petitioner has the burden of proving that he or she has exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

         Petitioner's claim that counsel was ineffective for failing to request jury instructions on causation and involuntary manslaughter was never presented to the Michigan Court of Appeals or Michigan Supreme Court in her appellate briefs. (See Doc. 8-16, Pg. ID 1291-1346, Doc. 8-17, Pg. ID 1500-35). Although her co-defendant husband raised this claim in his own appeal brief, this would be insufficient to exhaust the claim for petitioner. Petitioner's second claim is unexhausted because she did not personally raise this claim in her own appeal. There is no case authority that the co-defendant's appeal of this issue “should be ascribed” to Petitioner in order to satisfy the exhaustion requirement. See Aldrich v. Bock, 327 F.Supp.2d 743, 748, n. 1 (E.D. Mich. 2004). The issues raised by Petitioner involve constitutional privileges which are personal to her, therefore, an appeal by her co-defendant would be insufficient to exhaust this claim. See Williams v. Nelson, 431 F.2d 932, 933 (9th Cir. 1970)(Where questions raised by state prisoner, petitioning for habeas corpus, involved constitutional privileges which were personal to him, appeal by his co-defendant could not exhaust his remedies in the state courts).

         In addition, the mere fact that Petitioner raised other ineffective assistance of counsel claims on her appeal of right would be insufficient to exhaust her current ineffective assistance of counsel claim. A claim may be considered “fairly presented” only if the petitioner asserted both the factual and legal basis for his or her claim in the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The doctrine of exhaustion mandates that the same claim under the same theory be presented to the state courts before it can be raised in a federal habeas petition. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). “Even the same claim, if raised on different grounds, is not exhausted for the purpose of federal habeas review.” Rayner v. Mills, 685 F.3d 631, 643 (6th Cir. 2012).

         A habeas petitioner is required to present to the state courts “the same specific claims of ineffective assistance [of counsel] made out in the habeas petition.” Wyldes v. Hundley, 69 F.3d 247, 253 (8th Cir. 1995)(quoting Tippitt v. Lockhart, 903 F.2d 552, 554 (8th Cir. 1990). Because Petitioner's current ineffective assistance of counsel claim is different than the ineffective assistance of counsel claims presented during petitioner's direct appeals process, this claim has not been fairly presented to the state courts. See Caver v. Straub, 349 F.3d 340, 346-47 (6th Cir. 2003)(citing to Pillette v. Foltz, 824 F.2d 494, 497 (6th Cir. 1987)); see also Brandon v. Stone, 226 Fed.Appx. 458, 459 (6th Cir. 2007)(state prisoner had not exhausted his state court remedies as to claim that trial ...


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