United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF
HABEAS CORPUS (ECF NO. 1), DENYING THE MOTION FOR A FREE COPY
OF THE RULE 5 MATERIALS (ECF NO. 19), DENYING A CERTIFICATE
OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA
PAUPERIS ON APPEAL
MATTHEW F. LEITMAN, UNITED STATES DISTRICT JUDGE.
1984, Michigan prisoner Charles White
(“Petitioner”) was convicted of first-degree
criminal sexual conduct in the Oakland County Circuit Court
and sentenced to four concurrent terms of four to forty years
imprisonment. (See Offender Profile, Michigan
Department of Corrections Offender Tracking Information
mdocNumber=177157.) In 1990, Petitioner was convicted of
prison escape in the Wayne County Circuit Court. (See
id.) He was sentenced to one to five years imprisonment
- later amended to one year and one day - to be served
consecutively to his other sentences. (See id.; Ltr.
from Wayne Co. Cir. Ct. Chief Judge Colombo, ECF No. 1,
24, 2018, Petitioner brought this habeas case pursuant to 28
U.S.C. § 2254. In his pleadings, Petitioner raises
claims about how his sentences have been calculated.
(See Pet., ECF No. 1.) Respondent has filed an
answer to the petition contending that it should be denied on
exhaustion grounds and for lack of merit. (See
Answer, ECF No. 12.) Petitioner has filed a reply to that
answer, as well as a motion for a free copy of the Rule 5
materials submitted by Respondent. (See Reply, ECF
No. 14; Request to Receive Rule 5 Materials, ECF No. 19.)
reasons set forth below, the Court DENIES
the petition for a writ of habeas corpus (ECF No. 1), and the
Court DENIES Petitioner's motion for a
copy of the Rule 5 materials (ECF No. 19). The Court also
DENIES Petitioner a certificate of
appealability and DENIES Petitioner leave to
proceed in forma pauperis on appeal.
petition must be dismissed because Petitioner has not fully
exhausted his claims in the state courts.
prisoner filing a petition for a writ of habeas corpus under
28 U.S.C. § 2254 must first exhaust all state remedies.
See 28 U.S.C. § 2254(c); O'Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate
prisoners must give the state courts one full fair
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process.”); Williams v. Mitchell, 792
F.3d 606, 613 (6th Cir. 2015). To satisfy the exhaustion
requirement, a Michigan prisoner must present each issue to
both the Michigan Court of Appeals and the Michigan Supreme
Court. See Smith v. Stephenson, No. 16-cv-12241,
2016 WL 3418553, at *1 (E.D. Mich. June 22, 2016); see
also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.
1990). The claims must be “fairly presented” to
those courts, meaning that the petitioner must have asserted
both the factual and the legal bases for the claims. Hand
v. Houk, 871 F.3d 390, 418 (6th Cir. 2017) (citing
McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.
2000)). The petitioner must also present the claims to the
state courts as federal constitutional issues. Hruby v.
Wilson, 494 Fed.Appx. 514, 517 (6th Cir. 2012). The
burden is on the petitioner to prove exhaustion. Nali v.
Phillips, 681 F.3d 837, 852 (6th Cir. 2012).
makes no such showing. Petitioner filed a state habeas
petition in 2003 alleging that his sentences were
miscalculated. (See Pet., ECF No. 1, PageID.4.) It
does not appear that he presented his claim as a federal
constitutional issue. (See id.; Opinion and Order
Denying State Habeas Petition, ECF No. 1, PageID.13-15.) And
even if he presented a federal constitutional claim to the
state trial court, there is no indication that Petitioner
satisfied the exhaustion requirement by presenting the claim
to the Michigan Court of Appeals. The petition does not
mention a state court appeal. (See Id. at
PageID.1-7.) And there is no other evidence in the record
suggesting that Petitioner presented his claim to a Michigan
appellate court. His claims are thus unexhausted.
the Court DENIES and DISMISSES
WITHOUT PREJUDICE the petition for a writ of habeas
corpus (ECF No. 1). Given this determination, the Court
DENIES Petitioner's motion for a free
copy of the Rule 5 materials (ECF No. 19).
Petitioner may appeal the Court's decision, a certificate
of appealability must issue. See 28 U.S.C. §
2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of
appealability may issue “only if the applicant has made
a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “When the
district court denies a habeas petition on procedural grounds
without reaching the prisoner's underlying constitutional
claim, a [certificate of appealability] should issue when the
prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (emphasis added).
Petitioner fails to make a substantial showing that a
reasonable jurist would debate the Court's procedural
ruling that Petitioner failed to exhaust his constitutional
claim. Accordingly, the Court DENIES a
certificate of appealability.
the Court DENIES Petitioner leave to proceed
in forma pauperis on appeal as an appeal cannot be taken in