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Buchanan v. Davids

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

August 8, 2019

DEMARIO MARCELLIS BUCHANAN, Petitioner,
v.
JOHN DAVIDS, Respondent.

          OPINION

          Janet T. Neff, United States District Judge.

         This is 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 remedies.

         Discussion

         I. Procedural Background

         Petitioner 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.

         On 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.)

         II. Exhaustion of State Court Remedies

         Before 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. 1970).

         Petitioner 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.[1] (Pet., ECF No. 1-1, PageID.18-22.)

         An 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). ...


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