United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING REQUEST TO HOLD PETITION
FOR WRIT OF HABEAS CORPUS IN ABEYANCE AND DISMISSING PETITION
M. LAWSON UNITED STATES DISTRICT JUDGE.
April 29, 2019, the petitioner, Jeffrey Innes Wendorf,
presently confined at the Bellamy Creek Correctional Facility
in Ionia, Michigan, filed his pro se petition for a
writ of habeas corpus under 28 U.S.C. § 2254. In that
same filing, he included a request to stay the case and hold
the petition in abeyance. After reviewing the petition,
however, it appears that Wendorf has not exhausted his state
court remedies as to any of his claims, which a prisoner must
do before applying to the federal courts for habeas corpus
relief. Therefore, the Court will deny the petitioner's
request to hold his petition in abeyance and dismiss the
petition without prejudice.
November 6, 2016, the petitioner pleaded guilty in the
Tuscola County, Michigan circuit court to unlawful
imprisonment, Mich. Comp. Laws § 750.349b, and assault
with intent to do great bodily harm less than murder, Mich.
Comp. Laws § 750.84. On April 24, 2017, the state court
imposed a sentence of 16 to 30 years in prison. The Michigan
Court of Appeals affirmed the petitioner's conviction,
People v. Wendorf, No. 342016 (Mich. Ct. App. Mar.
6, 2018). The petitioner had until May 1, 2018 to file a
timely application for leave to appeal to the Michigan
Supreme Court; however, he did not file his application until
September 28, 2018. On October 3, 2018, the Michigan Supreme
Court denied the application as untimely. The
petitioner's judgment of conviction therefore became
final on May 1, 2018. See Gonzalez v. Thaler, 565
U.S. 134, 154 (2012) (explaining that where petitioners only
appeal their convictions to the intermediate appellate court
and fail to properly or timely file an application for leave
to appeal to the state's highest court, the 90-day period
for seeking certiorari from the Supreme Court is not
incorporated in determining when the petitioner's
judgment became final).
April 29, 2019, the petitioner filed the present habeas
corpus petition, raising the following claims: (1) his plea
was involuntary and coerced because he was never informed of
the elements of the crimes; (2) the petitioner was illegally
arrested; (3) the petitioner was interrogated without being
advised of his Miranda rights; and (4) his appellate
counsel was ineffective for failing to raise these claims on
appeal. Pet. at 3.
petitioner does not allege that he has exhausted any of his
claims. He is critical of his appellate counsel, asserting
that only a claim of perjured testimony by the
petitioner's victim was presented to the state courts.
Pet. at 3. But the petitioner did not attach to his petition
any filings from his state court proceedings that would
clarify what claims were raised on appeal. Nor is the Court
in possession of the Michigan Court of Appeals's decision
affirming the petitioner's conviction. Based on the
record before the Court, it does not appear that the
petitioner presented to the state courts any of the claims in
his habeas petition. The petitioner notes that he has not
filed a motion for relief from judgment under Subchapter
6.500 of the Michigan Court Rules. Pet. at 6. He nevertheless
filed his petition under section 2254 as the limitations
period was set to expire, noting that “it seems better
to be safe than sorry.” Ibid.
petition for habeas corpus is filed, 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 also 28
U.S.C. § 2243. If, after preliminary consideration, the
Court determines that the petitioner is not entitled to
relief, the Court must summarily dismiss the petition.
McFarland v. Scott, 512 U.S. 849, 856 (1994)
(“Federal courts are authorized to dismiss summarily
any habeas petition that appears legally insufficient on its
face.”). The petition contains only unexhausted claims;
it therefore will be dismissed.
doctrine of exhaustion of state remedies requires state
prisoners to “fairly present' their claims as
federal constitutional issues in the state courts before
raising those claims in a federal habeas corpus petition.
See 28 U.S.C. § 2254(b)(1)(A), (c);
O'Sullivan v. Boerckel, 526 U.S. 838, 844
(1999); McMeans v. Brigano, 228 F.3d 674, 680-81
(6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160 (6th
Cir. 1994). The exhaustion requirement is satisfied if a
prisoner invokes one complete round of the state's
established appellate review process, including a petition
for discretionary review to a state supreme court. See
O'Sullivan, 526 U.S. at 845, 847. A prisoner
“‘fairly presents' his claim to the state
courts by citing a portion of the Constitution, federal
decisions using constitutional analysis, or state decisions
employing constitutional analysis in similar fact
patterns.” Levine v. Torvik, 986 F.2d 1506,
1516 (6th Cir. 1993); see also Prather v. Rees, 822
F.2d 1418, 1420 (6th Cir. 1987) (“Ordinarily, the state
courts must have had the opportunity to pass on
defendant's claims of constitutional violations”).
A Michigan petitioner must present each ground to both
Michigan appellate courts before seeking federal habeas
corpus relief. Wagner v. Smith, 581 F.3d 410, 414
(6th Cir. 2009); Mohn v. Bock, 208 F.Supp.2d 796,
800 (E.D. Mich. 2002); see also Hafley v. Sowders,
902 F.2d 480, 483 (6th Cir. 1990). The petitioner bears the
burden of showing that his state court remedies have been
exhausted. Rust, 17 F.3d at 160.
the petitioner has failed to satisfy his burden of showing
exhaustion of state court remedies as his petition raises
claims that apparently have not been presented to the state
courts. A prisoner is required to comply with this exhaustion
requirement as long as there is a state-court procedure
available for him to do so. See Adams v. Holland,
330 F.3d 398, 401 (6th Cir. 2003). The Michigan Court Rules
provide a process by which the petitioner may raise his
unexhausted claims. The petitioner may file a motion for
relief from judgment under Subchapter 6.500 of the Michigan
Court Rules, which allows the trial court to appoint counsel,
seek a response from the prosecutor, expand the record,
permit oral argument, and conduct an evidentiary hearing on
the petitioner's claim. The petitioner may appeal the
trial court's disposition of his motion for relief from
judgment to the Michigan Court of Appeals and the Michigan
Supreme Court, and he may thereafter file a petition for writ
of certiorari in the United States Supreme Court. To
obtain relief in state court, he will have to show cause for
failing to raise his unexhausted claims on direct review and
resulting prejudice or a significant possibility of
innocence. See Mich. Ct. R. 6.508(D)(3).
the petitioner presented the Court with a “mixed”
petition of exhausted and unexhausted claims that in
“limited circumstances” would justify dismissing
the unexhausted claims, retaining jurisdiction over the
exhausted claims, and staying proceedings pending exhaustion.
See Rhines v. Weber, 544 U.S. 269, 277-78 (2005)
(explaining that a stay is available “when the district
court determines there was good cause for the
petitioner's failure to exhaust his claims first in state
court, ” the unexhausted claims are not “plainly
meritless, ” and the petitioner is not “engage[d]
in abusive litigation tactics or intentional delay.”);
see also Griffin v. Rogers, 308 F.3d 647, 652 &
652 n.1 (6th Cir. 2002); Palmer v. Carlton, 276 F.3d
777, 781 (6th Cir. 2002) (finding it “eminently
reasonable” to dismiss unexhausted claims in a habeas
petition and stay proceedings on the remaining claims pending
exhaustion of state court remedies). In this case, because
the petition contains no exhausted claims over which the
Court may retain jurisdiction, the Court will deny the
request to hold the petition in abeyance and dismiss the
petition so that the petitioner may pursue relief in the
claims raised in the habeas petition are unexhausted.
Therefore, the petitioner's claims do not present grounds
upon which this Court may grant habeas relief at this time.
The request to hold the petition in abeyance will be denied,
and the petition will be dismissed without prejudice.
it is ORDERED that the petitioner's
motion to hold the petition in ...