United States District Court, E.D. Michigan, Southern Division
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
GERSHWIN A. DRAIN, UNITED STATES DISTRICT COURT JUDGE
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.
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).
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.
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.
moved to dismiss the petition on the ground that
Petitioner's second claim was not exhausted with the
instant Petition is subject to dismissal because
Petitioner's second claim has yet to be exhausted with
the state courts.
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).
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).
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).
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 ...