United States District Court, W.D. Michigan, Northern Division
JOSEPH R. PLIS, Petitioner,
CONNIE HORTON, Respondent.
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
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
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.
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)).
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)
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
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