Plis v. Horton

          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. Factual allegations

         Petitioner Joseph R. Plis presently is incarcerated with the Michigan Department of Corrections at the Chippewa Correctional Facility (URF) in Kincheloe, Chippewa County, Michigan. Petitioner pleaded nolo contendere in the Chippewa County Circuit Court to one count of third-degree criminal sexual conduct, Mich. Comp. Laws § 750.520d(1)(d), and being a third-offense felony offender, Mich. Comp. Laws § 769.11. On November 9, 2017, the court sentenced Petitioner to a prison term of 10 years and 6 months to 30 years.

         Petitioner sought leave to appeal his conviction and sentence to both the Michigan Court of Appeals and the Michigan Supreme Court. Those courts denied leave to appeal on November 5, 2018, and April 2, 2019, respectively.

         On August 19, 2019, Petitioner filed his habeas corpus petition. 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 has not supplied that date he handed the petition to prison authorities, but the application was mailed on August 19, 2019. (Pet., ECF No. 1, PageID.12.) The petition was received by the Court on August 22, 2019. The Court has given Petitioner the benefit of the earliest possible filing date. See Brand v. Motley, 526 F.3d 921, 925 (6th Cir. 2008) (holding that the date the prisoner signs the document is deemed under Sixth Circuit law to be the date of handing to officials) (citing Goins v. Saunders, 206 Fed.Appx. 497, 498 n.1 (6th Cir. 2006)).

         The petition raises two grounds for relief, as follows:

I. TRIAL COURT ERR[ED] IN DENYING [PETITIONER'S] MOTION TO WITHDRAW HIS NO CONTEST PLEA.

II. INEFFECTIVE ASSISTANCE OF TRIAL (AND APPELLATE) COUNSEL.

(Pet., ECF No. 1, PageID.4-5)

         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 alleges that he presented the first issue to both the Michigan Court of Appeals and the Michigan Supreme Court on direct review of his conviction and sentence. He argued that his plea was not knowing, intelligent, or voluntary because of misrepresentations concerning the duration of his requirement to register as a sex offender. Petitioner ...