Bridges #162077 v. Jones, No. 1:2005cv00378 - Document 3 (W.D. Mich. 2005)
Court Description: OPINION; signed by Chief Judge Robert Holmes Bell (Chief Judge Robert Holmes Bell, ymc)
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Bridges #162077 v. Jones Doc. 3 Case 1:05-cv-00378-RHB-JGS Document 3 Filed 06/08/2005 Page 1 of 7 UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LLOYD ROBERT BRIDGES, ) ) Petitioner, ) ) v. ) ) KURT JONES, ) ) Respondent. ) ____________________________________) Case No. 1:05-cv-378 Honorable Robert Holmes Bell OPINION This is a habeas corpus action brought by a state prisoner pursuant to 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 concludes that the petition must be dismissed without prejudice for failure to exhaust available state-court remedies. Dockets.Justia.com Case 1:05-cv-00378-RHB-JGS Document 3 Filed 06/08/2005 Page 2 of 7 Discussion I. Factual allegations Petitioner Lloyd Robert Bridges presently is incarcerated with the Michigan Department of Corrections and housed at the Carson City Correctional Facility. He currently is serving a term of 18 to 50 years, imposed by the Calhoun County Circuit Court on July 23, 2004, after Petitioner entered a plea of nolo contendere as a second felony offender to first-degree criminal sexual conduct, MICH. COMP. LAWS § 750.520b(1)(a). Shortly after entry of his plea and before sentencing, Petitioner moved to withdraw his plea, contending that his plea was rushed and hurried and that it was not made with full understanding. At a hearing on his motion to withdraw the plea held on July 19, 2004, Petitioner represented that he was innocent of the charges and that his attorney had tricked him into accepting the plea, advising Petitioner that he would received the death penalty if he went to trial. The trial court denied the motion to withdraw the plea on July 19, 2004. Petitioner filed a delayed application for leave to appeal to the Michigan Court of Appeals. He does not specify what issues he attempted to raise in that court. The court of appeals denied leave to appeal on February 3, 2005. Petitioner apparently did not seek leave to appeal to the Michigan Supreme Court. He filed the instant petition on May 31, 2005, raising four issues: (1) the trial court s refusal to permit withdrawal of the plea violated due process because the plea was involuntary because Petitioner is actually innocent of the offense; (2) the refusal to permit withdrawal of the plea violated due process because the plea was unknowing and involuntary based on a misapprehension of facts; (3) the refusal to permit withdrawal of the plea was involuntary because Petitioner s attorney coerced him with a purported threat from the court; and (4) trial counsel was constitutionally ineffective. -2- Case 1:05-cv-00378-RHB-JGS II. Document 3 Filed 06/08/2005 Page 3 of 7 Failure to exhaust available state-court remedies Before 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. See O Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77 (1971) (cited by Duncan v. Henry, 513 U.S. 364, 365 (1995) and 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. Duncan, 513 U.S. at 365-66; Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). [S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State s established appellate review process. O Sullivan, 526 U.S. at 845. 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, 424 F.2d at 138-39. Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner alleges that he filed an application for leave to appeal to the Michigan Court of Appeals, which was denied on February 3, 2005. He does not indicate what issues he attempted to raise in his appeal, and he apparently did not file an application for leave to appeal to the Michigan Supreme Court. He therefore has not fairly presented any of the claims raised in the instant habeas petition to the Michigan Supreme Court. See Duncan, 513 U.S. at 365-66. An applicant has not exhausted available state remedies if he has the right under state -3- Case 1:05-cv-00378-RHB-JGS Document 3 Filed 06/08/2005 Page 4 of 7 law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). Petitioner has at least one available procedure by which to raise the unexhausted issues he has presented in this application. He may file a motion for relief from judgment under M.C.R. 6.500 et. seq. Under Michigan law, one such motion may be filed after August 1, 1995. M.C.R. 6.502(G)(1). Petitioner has not yet filed his one allotted motion. Therefore, the Court concludes that he has at least one available state remedy. Petitioner s application is subject to the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1)(A), the one-year limitation period 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. Petitioner sought leave to appeal his conviction to the Michigan Court of Appeals. The court of appeals denied his application on February 3, 2005. Petitioner did not seek leave to appeal to the Michigan Supreme Court. Where a petitioner has failed to pursue an avenue of appellate review available to him, the time for seeking review at that level is counted under § 2244(d)(1)(A). See 28 U.S.C. § 2244(d)(1)(A) (time for filing a petition pursuant to § 2254 runs from the date on which the judgment became final by the conclusion of direct review or the expiration of time for seeking such review. ) (emphasis added). However, such a petitioner is not entitled to also count the 90-day period during which he could have filed a petition for certiorari to the United States Supreme Court. See United States v. Cottage 307 F.3d 494, 499 (6th Cir. 2002) (holding that, in the context of a motion under 28 U.S.C. § 2255, where a petitioner has failed to file a direct appeal to the court of appeals, the time for filing a petition does not include the ninety-day period for seeking certiorari in the United States Supreme Court because no judgment exists from which he could seek further review in the United States Supreme Court); United States v. Clay, 537 -4- Case 1:05-cv-00378-RHB-JGS Document 3 Filed 06/08/2005 Page 5 of 7 U.S. 522, 123 S. Ct. 1072 (2003) (holding that finality is analyzed the same under §§ 2244(d)(1)(A) and 2255). Here, since the Supreme Court will review only final judgments of the highest court of a state in which a decision could be had . . . , 28 U.S.C. § 1257(a), the decision must be considered final at the expiration of the 56-day period for seeking review in the Michigan Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 694-95 (5th Cir. 2003); Kapral, 166 F.3d at 577; Ovalle v. United States, No. 02-1270, 2002 WL 31379876 at *2 (6th Cir. Oct. 21, 2002) (citing Wims v. United States, 225 F.3d 186, 188 (2d Cir. 2000)). Petitioner s conviction therefore became final on Thursday, March 31, 2005, and his statute of limitations will expire on March 31, 2006. Petitioner has ample time remaining in the limitations period, and he is not in danger of running afoul of the statute of limitations so long as he diligently pursues his state court remedies. Accordingly, his habeas corpus petition will be dismissed without prejudice for lack of exhaustion. Conclusion In light of the foregoing, the Court will summarily dismiss Petitioner s application pursuant to Rule 4 because he has failed to exhaust state court remedies. Certificate of Appealability Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This Court s dismissal of Petitioner s action under Rule 4 of the Rules Governing § 2254 Cases is a determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when the Court has already determined that the action is so lacking in merit -5- Case 1:05-cv-00378-RHB-JGS Document 3 Filed 06/08/2005 Page 6 of 7 that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is somewhat anomalous for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v. Commissioner of Correction of the State of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was intrinsically contradictory to grant a certificate when habeas action does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would be inconsistent with a summary dismissal). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must engage in a reasoned assessment of each claim to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner s claims under the Slack standard. This Court denied Petitioner s application on the procedural ground of lack of exhaustion. Under Slack, 529 U.S. at 484, when a habeas petition is denied on procedural grounds, a certificate of appealability may issue only when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Both showings must be made to warrant the grant of a certificate. Id. The Court finds that reasonable jurists could not debate that this Court correctly dismissed the petition on the procedural grounds of lack of exhaustion. Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist -6- Case 1:05-cv-00378-RHB-JGS Document 3 Filed 06/08/2005 Page 7 of 7 could not conclude either that the district court erred in dismissing the petition or that the petitioner should be allowed to proceed further. Id. Therefore, the Court denies Petitioner a certificate of appealability. A Judgment consistent with this Opinion will be entered. Date: June 8, 2005 /s/ Robert Holmes Bell ROBERT HOLMES BELL CHIEF UNITED STATES DISTRICT JUDGE -7-
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