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 order Petitioner to demonstrate
that he meets the requirements for a stay of his exhausted
claims while he exhausts his previously unexhausted claims.
Brian Macksey is incarcerated with the Michigan Department of
Corrections at Bellamy Creek Correctional Facility (IBC) in
Ionia County, Michigan. Following a trial in the Kent County
Circuit Court, a jury convicted Petitioner of one count
first-degree, and two counts of second-degree criminal sexual
conduct (CSC) with a person under the age of 13 years old. On
June 21, 2016, the trial court sentenced him to concurrent
terms of 25 to 45 years for the first-degree CSC conviction,
and 5 to 15 years for each of the second-degree CSC
timely filed his habeas corpus petition in July 2019. The
petition raises the following grounds for relief:
I. [Petitioner] was denied due process and his right to a
fair trial when the trial court excluded evidence which would
impeach his accuser. This exclusion barred [Petitioner's]
ability to present a complete defense.
II. [Petitioner] was denied his right to the effective
assistance of counsel when counsel failed to object to the
exclusion of the impeachment evidence. The state court's
application resulted in a decision that was based on an
unreasonable determination of the facts in light of the
(Pet., ECF No. 1, PageID.3.)
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.
O'Sullivan, 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).
bears the burden of showing exhaustion. See Rust v.
Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner
alleges that he raised the following issues on appeal to the
Michigan Court of Appeals and the Michigan Supreme Court:
[Petitioner] was denied his right to a fair trial and due
process of law under U.S. Const. AM. XIV and Const. 1963,
art. 1 § 20 by the trial court's exclusion of
evidence which would impeach his accuser. Alternatively,
[Petitioner] was denied his right to effective assistance of
counsel under U.S. Const. Ams. VI, XIV, and Const. 1963, art.