United States District Court, E.D. Michigan, Southern Division
ORDER DISMISSING HABEAS PETITION WITHOUT
J. MICHELSON UNITED STATES DISTRICT JUDGE
Hicks is presently incarcerated after being convicted of
armed robbery and carjacking. He has filed a pro se
habeas corpus petition in which he alleges that the state
trial court set an excessive amount of bail. Hicks also
appears to allege that there was insufficient evidence to
support his convictions. Hicks does not appear to have raised
these claims in the Michigan Court of Appeals, and his
criminal case is still pending in the Michigan Supreme Court.
Accordingly, the Court will dismiss the petition as premature
and for failure to exhaust state remedies.
a bench trial in Wayne County Circuit Court, Hicks was
convicted of carjacking, Mich. Comp. Laws § 750.529a,
and two counts of armed robbery, Mich. Comp. Laws §
750.529. (ECF No. 1, PageID.1-2.) The trial court sentenced
Hicks to thirty to forty-five years in prison. (ECF No. 1,
appealed the convictions and sentence. Although he maintains
that he raised a sufficiency-of-the-evidence claim to the
Michigan Court of Appeals and the Michigan Supreme Court (ECF
No. 1, PageID.2-3), the Michigan Court of Appeals'
decision indicates that Hicks only raised arguments about his
trial attorney and his sentence. In his direct appeal, Hicks
alleged that: (1) trial counsel was ineffective for failing
to (a) object to the admission of a statement Hicks made to
the police, (b) move to strike a faulty lineup and the
victim's in-court identification of him, and (c) call
various witnesses to testify on his behalf; (2) his waiver of
a jury trial was inadequate; (3) he received ineffective
assistance of counsel at sentencing when defense counsel did
not object to Hicks being sentenced as a fourth-offense
habitual offender; and (4) his sentences were unreasonable.
The Michigan Court of Appeals rejected these claims and
affirmed Hicks's convictions and sentence. See People
v. Hicks, No. 336702, 2018 WL 6422099 (Mich. Ct. App.
Dec. 6, 2018). Hicks applied for leave to appeal in the
Michigan Supreme Court which remains pending. See People
v. Hicks, No. 336702, 2018 WL 6422099 (Mich. Ct. App.
Dec. 6, 2018), appeal docketed, No. 159020 (Mich.
Jan. 24, 2019).
filed his habeas corpus petition in this Court on July 26,
2019. He alleges in ground one that it was cruel and unusual
punishment under the Eighth Amendment for the state trial
court to set bond at $100, 000, knowing that Hicks could not
afford to pay that amount. (ECF No. 1, PageID.5.) In the
space allotted for ground two, Hicks wrote “none”
(ECF No. 1, PageID.7), and for ground three Hicks wrote:
“Due process protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he is
charged.” (ECF No. 1, PageID.8.)
exhaustion doctrine requires state prisoners to present their
claims to the state courts before raising them in a federal
habeas corpus petition. See 28 U.S.C. §
2254(b)(1); O'Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). This requirement is satisfied if a prisoner
“invok[es] one complete round of the State's
established appellate review process, ” including a
petition for discretionary review in the state supreme court,
“when that review is part of the ordinary appellate
review procedure in the State.” O'Sullivan v.
Boerckel, 526 U.S. at 845, 847. Thus, to be properly
exhausted, each habeas claim must have been fairly presented
to the state court of appeals and to the state supreme court.
Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009).
Federal district courts ordinarily must dismiss a habeas
petition containing any unexhausted claims. Rose v.
Lundy, 455 U.S. 509, 510, 522 (1982).
admits that he did not raise his first habeas claim on appeal
from his convictions, and although he contends that he raised
the issue in a post-conviction motion, he states that there
has been no decision on his motion. (ECF No. 1, PageID.5-6,
12.) As for his only other claim, insufficient evidence,
Hicks states that he did not raise that issue on appeal or in
a post-conviction motion. (ECF No. 1, PageID.8-9.) In
addition, as pointed out above, Hicks's direct appeal
remains pending in the Michigan Supreme Court.
Court concludes that Hicks has not exhausted state remedies
for the two claims that he has presented to this Court in his
habeas corpus petition. Furthermore, because Hicks's
criminal case is pending in the Michigan Supreme Court, it
does not appear that the AEDPA statute of limitations has
begun to run. The limitation period ordinarily runs from
“the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review.” 28 U.S.C. § 2244(d)(1)(A).
For petitioners who pursue direct review all the way to [the
Supreme] Court, the judgment becomes final . . . when [the
Supreme] Court affirms a conviction on the merits or denies a
petition for certiorari. For all other petitioners, the
judgment becomes final at the “expiration of the time
for seeking such review”-when the time for pursuing
direct review in [the Supreme] Court, or in state court,
Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
Because Hicks's convictions have not yet become final,
the statute of limitations is not a concern here, and there
is no reason to hold Hicks's habeas petition in abeyance.
Accordingly, the Court summarily dismisses the petition as
premature and for failure to ...