United States District Court, W.D. Michigan, Southern Division
T. Neff, United States District Judge.
a habeas corpus action brought by a state prisoner under 28
U.S.C. § 2254. Promptly after the filing of a petition
for habeas corpus, 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 28 U.S.C. § 2243. If so, the
petition must be summarily dismissed. Rule 4; see 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 dismissal under Rule 4 includes
those petitions which raise legally frivolous claims, as well
as those containing factual allegations that are palpably
incredible or false. Carson v. Burke, 178 F.3d 434,
436-37 (6th Cir. 1999). After undertaking the review required
by Rule 4, the Court will dismiss the petition without
prejudice for failure to exhaust available state-court
DeMario Marcellis Buchanan is incarcerated with the Michigan
Department of Corrections at the Ionia Correctional Facility
(ICF) in Ionia, Michigan. On May 15, 2015, Petitioner pleaded
nolo contendere in the Muskegon County Circuit Court
to second-degree murder in violation of Mich. Comp. Laws
§ 750.317, lying to an officer during a criminal
investigation in violation of Mich. Comp. Laws §
750.479c, felon in possession of a firearm in violation of
Mich. Comp. Laws § 750.224f, and possession of a firearm
during the commission of a felony (felony-firearm) in
violation of Mich. Comp. Laws § 750.227b. On February
14, 2017, the court sentenced Petitioner as a habitual
offender-fourth offense, Mich. Comp. Laws § 769.12, to
concurrent sentences of 18 to 35 years for murder, 5 to 15
years for felony in possession, and 3 to 15 years for lying
to an officer. Those sentences were to be served
consecutively to a sentence of 2 years for felony-firearm.
April 11, 2019, Petitioner filed his habeas corpus petition
raising three grounds for relief, as follows:
I. The prosecution engaged in prosecutorial misconduct and
Petitioner's trial counsel rendered ineffective
assistance by colluding and conspiring to a wrongful plea.
II. The prosecution failed to properly disclose exculpatory
DNA and material evidence prior to plea and thereafter.
III. Appellate counsel failed to raise constitutional claims
that would have exonerated Petitioner.
(Pet., ECF No.1-1, PageID.20.)
Exhaustion of State Court Remedies
the Court may grant habeas relief to a state prisoner, the
prisoner must exhaust remedies available in the state courts.
28 U.S.C. § 2254(b)(1); O'Sullivan v.
Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires
a petitioner to “fairly present” federal claims
so that state courts have a “fair opportunity” to
apply controlling legal principles to the facts bearing upon
a petitioner's constitutional claim. Id. at 844,
848; see also Picard v. Connor, 404 U.S. 270, 275-77
(1971); Duncan v. Henry, 513 U.S. 364, 365 (1995);
Anderson v. Harless, 459 U.S. 4, 6 (1982). To
fulfill the exhaustion requirement, a petitioner must have
fairly presented his federal claims to all levels of the
state appellate system, including the state's highest
court. O'Sullivan, 526 U.S. at 845; Wagner
v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley
v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The
district court can and must raise the exhaustion issue
sua sponte when it clearly appears that habeas
claims have not been presented to the state courts. See
Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987);
Allen v. Perini, 424 F.2d 134, 138-39 (6th Cir.
bears the burden of showing exhaustion. See Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner
acknowledges that he has not exhausted his three habeas
issues in the state appellate courts. Instead, he is raising
the issues for the first time in this Court and, at the same
time, in the trial court by way of a motion for relief from
judgment. (Pet., ECF No. 1-1, PageID.18-22.)
applicant has not exhausted available state remedies if he
has the right under state law to raise, by any available
procedure, the question presented. 28 U.S.C. § 2254(c).
Petitioner has at least one available procedure by which to
raise the issues he has presented in this application: a
motion for relief from judgment under Mich. Ct. R. 6.500
et seq. Under Michigan law, one such motion may be
filed after August 1, 1995. Mich. Ct. R. 6.502(G)(1).