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
remedies. The Court will also deny Petitioner's motion
for a stay (ECF No. 3).
Michael David Holman is incarcerated with the Michigan
Department of Corrections at the Bellamy Creek Correctional
Facility (IBC) in Ionia, Michigan. On November 26, 2014, a
Muskegon County Circuit Court judge, found Petitioner guilty
of two counts of first-degree criminal sexual conduct (CSC
I), Mich. Comp. Laws § 750.520b, and one count of
second-degree criminal sexual conduct (CSC II), Mich. Comp.
Laws § 750.520c. On January 5, 2015, the court sentenced
Petitioner as a habitual offender-fourth offense, Mich. Comp.
Laws § 769.12, to concurrent terms of imprisonment of 33
to 50 years for each CSC I conviction and 9 to 30 years for
the CSC II conviction.
January 22, 2018, Petitioner filed his first habeas corpus
petition. Holman v. Trierweiler, No. 1:18-cv-86
(W.D. Mich.). Under Sixth Circuit precedent, the application
is deemed filed when handed to prison authorities for mailing
to the federal court. Cook v. Stegall, 295 F.3d 517,
521 (6th Cir. 2002). Petitioner placed his petition in the
prison mailing system on January 22, 2018. (Pet., ECF No. 1,
petition raised 11 grounds for relief. No. 1:18-cv-86 (Pet.,
ECF No. 1, PageID.6-29.) It was dismissed for lack of
exhaustion. As the Court explained, before a 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. See
O'Sullivan, 526 U.S. at 842; Picard v.
Connor, 404 U.S. 270, 275-77 (1971), cited in Duncan
v. Henry, 513 U.S. 364, 365 (1995), and 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. Duncan, 513
U.S. at 365-66; Wagner v. Smith, 581 F.3d 410, 414
(6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480,
483 (6th Cir. 1990).
attempted to meet his burden of demonstrating exhaustion by
submitting his Michigan Court of Appeals Standard 4
Supplemental Brief and two applications for leave to appeal
filed in the Michigan Supreme Court: one filed by counsel and
one filed by Petitioner under Standard 4. Petitioner's
Standard 4 filing in the Michigan Supreme Court revealed that
he did not raise habeas issue XI, regarding witness
Bernadette Stover, in the Michigan Court of Appeals. No.
1:18-cv-86 (Pet'r's Standard 4 Appl. for Leave to
Appeal, ECF No. 1-1, PageID.130.) Because Petitioner did not
raise the issue in the Michigan Court of Appeals, he failed
to satisfy the exhaustion requirement.
initial petition was “mixed”-it included
exhausted and unexhausted claims. Under Rose v.
Lundy, 455 U.S. 509, 522 (1982), district courts are
directed to dismiss mixed petitions without prejudice in
order to allow petitioners to return to state court to
exhaust remedies. However, since the habeas statute was
amended to impose a one-year statute of limitations on habeas
claims, see 28 U.S.C. § 2244(d)(1), dismissal
without prejudice might preclude future federal habeas review
of the exhausted claims on timeliness grounds. To avoid this
problem, the Sixth Circuit adopted a stay-and-abeyance
procedure to be applied to mixed petitions. See Palmer v.
Carlton, 276 F.3d 777, 781 (6th Cir. 2002). In
Palmer, the Sixth Circuit held that when the
dismissal of a mixed petition could jeopardize the timeliness
of a subsequent petition, the district court should dismiss
only the unexhausted claims and stay further proceedings on
the remaining portion until the petitioner has exhausted his
claims in the state court. Id.; see also Rhines
v. Weber, 544 U.S. 269, 277 (2007) (approving
stay-and-abeyance procedure); Griffin v. Rogers, 308
F.3d 647, 652 n.1 (6th Cir. 2002).
Palmer court determined that dismissal of a mixed
petition might jeopardize the timeliness of a subsequent
petition where a petition had sixty or fewer days remaining
in the period of limitation at the time the first petition is
dismissed. At the time the Court reviewed the initial
petition Petitioner had more than 60 days remaining in his
period of limitation; accordingly, the Court dismissed the
petition. The Court explained to Petitioner that 30 days was
a reasonable time to permit him to file a motion for
post-conviction relief with regard to his unexhausted claim.
Once he filed such a motion, the period of limitation would
be stayed. The Court also informed Petitioner that he could
protect the timeliness of his exhausted claims by filing a
petition containing only his exhausted claims at any time
before the statute of limitation expired.
returned to the trial court. He filed a motion for relief
from judgment raising several new issues. Unfortunately,
Petitioner did not file his motion within the thirty-day
period that the Court had identified as reasonable; he waited
more than two months, until April 25, 2018, to file his
motion. At that time, only six days remained in
Petitioner's period of limitation, at least with respect
to Petitioner's exhausted claims. The trial court denied
relief on Petitioner's new claims on May 21, 2018.
Petitioner thereafter sought leave to appeal in the Michigan
Court of Appeals and then in Michigan Supreme Court. The
Michigan Court of Appeals denied leave on April 19, 2019. The
Michigan Supreme Court has not yet ruled on Petitioner's
the Michigan Supreme Court has yet to decide Petitioner's
application, his new claims remain unexhausted. His new
petition, which includes most of the exhausted claims from
his first petition and several new claims from his motion for
relief from judgment, is also mixed and, therefore, is
properly dismissed. This time, however, Petitioner has only a
few days remaining in his period of limitation. For that
reason, he seeks a stay.
courts . . . ordinarily have the authority to issues stays .
. . where such a stay would be a proper exercise of
discretion . . . [;the] AEDPA does not deprive district
courts of that authority . . . but it does circumscribe their
discretion.” Rhines v. Weber, 544 U.S. 269,
276 (2005) (citations omitted). To maintain compatibility
with the purposes of the AEDPA, stays are only appropriate
where “there was good cause for the petitioner's
failure to exhaust his claims[, ]” where the claims are
not “plainly meritless[, ]” the stay is subject
to “reasonable time limits[, ]” and the
petitioner has not been “dilatory” or engaged in
“abusive litigation tactics[.]” Id. at
claims he has not been dilatory, but he has offered no
explanation for delaying two months before filing his
state-court motion when the Court previously informed
Petitioner that 30 days would be a reasonable time. It is
that delay that has left Petitioner with only 6 days
remaining in his ...