Sieradzki v. Barrett

          OPINION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS, STAYING CASE, AND ADMINISTRATIVELY CLOSING CASE

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE.

         In 2018, Petitioner Richard Michael Sieradzki filed a pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254. Respondent Joe Barrett then filed a motion to dismiss the petition based on Petitioner's failure to exhaust state remedies for all his claims. As explained below, the petition is a “mixed” petition of exhausted and unexhausted claims. Dismissal of the petition would likely result in a future petition being barred by the habeas statute of limitations. Accordingly, rather than dismissing the petition, the court will stay and administratively close the case to allow Petitioner the opportunity to return to state court and exhaust all of his claims.

         I. BACKGROUND

         On April 10, 2015, Petitioner pleaded guilty in Muskegon County Circuit Court to one count of aggravated indecent exposure as a sexually delinquent person, Mich. Comp. Laws §750.335a(2)(b) and (c), and one count of accosting a child for immoral purposes, Mich. Comp. Laws § 750.145a. Petitioner had no plea agreement, but the trial court agreed that the minimum sentence for the accosting conviction would not exceed 58 months in prison and that the sentences for both counts would run concurrently. (ECF No. 7-3, PageID.61-63.) On July 6, 2015, the trial court sentenced Petitioner as a habitual offender to one day to life imprisonment for the indecent exposure conviction and 58 months to 15 years for the accosting conviction, with credit for 293 days. The court ordered the two sentences to run concurrently. (ECF No. 7-5, PageID.116.)

         In an application for leave to appeal in the Michigan Court of Appeals, Petitioner argued that the trial court violated statutory requirements and his right to due process by convicting and sentencing him as a sexually delinquent person without holding a separate hearing on sexual delinquency. He also alleged that his trial attorney was ineffective for not objecting to the trial court's failure to hold a separate hearing to establish sexual delinquency. The Court of Appeals granted leave to appeal, but later rejected Petitioner's arguments and affirmed his convictions and sentences in a per curiam opinion. See People v. Sieradzki, No. 333245, 2017 WL 4557026 (Mich. Ct. App. Oct. 12, 2017) (unpublished).

         Petitioner raised the same two issues he argued in his appeal in an application for leave to appeal in the Michigan Supreme Court. He also raised four new claims: the trial court refused to recuse itself despite overwhelming evidence of judicial bias; the trial court deprived him of due process by not allowing him to take a polygraph test to prove his innocence; his prior convictions for criminal sexual conduct were improperly used for purposes of the habitual offender statute; and appellate counsel was ineffective for failing to (a) file a motion for reconsideration in the Michigan Court of Appeals regarding the right to a separate hearing on sexual delinquency, (b) raise a claim about trial counsel's ineffectiveness, and (c) raise the new issues presented in his application for leave to appeal. On July 3, 2018, the Michigan Supreme Court denied leave to appeal because it was not persuaded to review the questions presented raised in Petitioner's application. See People v. Sieradzki, 913 N.W.2d 314 (Mich. 2018).

         On October 17, 2018, Petitioner signed and dated his habeas corpus petition, which the Clerk of Court filed on October 24, 2018. Petitioner alleges as grounds for relief that:

1) the Michigan Court of Appeals erred by ruling that Petitioner waived his claim regarding the trial court's failure to hold a separate hearing to establish the sexual delinquency charge;

2) trial counsel was ineffective for failing to object to the lack of a separate hearing regarding the sexual delinquency charge;

3) the trial court violated his right to due process by refusing to recuse itself despite overwhelming evidence that the court was biased;

4) the trial court violated his right to due process by refusing to allow him to take a polygraph test to prove his innocence;

5) his right to due process was violated by the use of prior convictions for criminal sexual conduct to establish that he was a habitual offender; and

6) appellate counsel was ineffective for failing to (a) file a motion for reconsideration in the Michigan Court of Appeals on his first claim, (b) argue that defense counsel was ineffective for failing to object to the lack of a separate hearing on ...