Graham #781005 v. Woods, No. 2:2014cv00141 - Document 6 (W.D. Mich. 2014)
Court Description: OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION SCOTT GRAHAM, Petitioner, Case No. 2:14-cv-141 v. Honorable Robert Holmes Bell JEFFREY WOODS, Respondent. ____________________________________/ OPINION This is 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 concludes that Petitioner has failed to exhaust his available state-court remedies as to all claims raised in the petition. Because Petitioner has fewer than 60 days remaining in the limitations period for filing a habeas petition, the Court will not dismiss the action at this time, pending Petitioner s compliance with the further directions of this Court set forth in this opinion and attached order. Discussion I. Factual allegations Petitioner Scott Graham is a state prisoner incarcerated at the Chippewa Correctional Facility. In 2010, following a jury trial in Mecosta County Circuit Court, Petitioner was convicted of first-degree, premeditated murder, Mich. Comp. Laws § 750.316(1)(a), and sentenced to a term of life in prison. He then filed a delayed application for leave to appeal his conviction with the Michigan Court of Appeals, asserting that the evidence was not sufficient to sustain a conviction. (See Pet., docket #1, Page ID#2.) The appellate court denied leave to appeal on October 23, 2012, for lack of merit in the grounds presented. Petitioner then sought leave to appeal to the Michigan Supreme Court, asserting that the evidence was insufficient to obtain a conviction, as well as additional grounds for relief not previously raised, including improper suppression of exculpatory evidence by the prosecution and ineffective assistance of appellate counsel. (Id. at Page ID#3.) The Michigan Supreme Court denied leave to appeal on April 1, 2013, because it was not persuaded that the questions presented should be reviewed by that court. Petitioner filed the instant action on or about June 25, 2014, asserting that (1) the prosecution improperly suppressed exculpatory evidence, (2) the evidence was insufficient to convict him, and (3) he was deprived of the effective assistance of appellate counsel.1 II. 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, 1 Petitioner also purports to assert, as a separate ground for relief in Ground Four of the petition, that he has exercised due diligence in attempting to obtain exculpatory evidence, but the Court cannot discern a distinct basis for relief in this claim. -2- 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 in 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; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); 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). According to the petition, Petitioner has not raised all of his grounds for relief at all levels of the state court appellate system. His claim regarding the insufficiency of the evidence appears to have been raised before the Michigan Court of Appeals and the Michigan Supreme Court, but it appears that his other two claims were raised for the first time in his appeal to the Michigan Supreme Court. Raising a claim for the first time before the state s highest court on discretionary review does not amount to fair presentation of the claim to the state courts for exhaustion purposes. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Because petitioner failed to present his other two claims in his appeal with the Michigan Court of Appeals, his subsequent presentation of those claims to the Michigan Supreme Court does not satisfy the exhaustion requirement for -3- habeas purposes. See Skinner v. McLemore, 425 F. App x 491, 494 (6th Cir. 2011); Farley v. Lafler, 193 F. App x 543, 549 (6th Cir. 2006). An applicant has not exhausted available state remedies if he has the right under state 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 MICH . CT . R. 6.500 et. seq. Under Michigan law, one such motion may be filed after August 1, 1995. MICH . CT . R. 6.502(G)(1). According to the petition, Petitioner has not yet filed his one allotted motion. Therefore, the Court concludes that he has at least one available state remedy. In order to properly exhaust his claims, Petitioner must raise them in a motion for relief from judgment filed in the Mecosta County Circuit Court. If his motion is denied by the circuit court, Petitioner must appeal that decision to the Michigan Court of Appeals and the Michigan Supreme Court. See Duncan, 513 U.S. at 365-66. Under Rose v. Lundy, 455 U.S. 509, 522 (1982), district courts are directed to dismiss petitions containing exhausted claims without prejudice in order to allow petitioners to return to state court to exhaust remedies. However, since the habeas statute was amended to impose a one-year statute of limitations on habeas claims, see 28 U.S.C. § 2244(d)(1), dismissal without prejudice often effectively precludes future federal habeas review. This is particularly true after the Supreme Court ruled in Duncan v. Walker, 533 U.S. 167, 181-82 (2001), that the limitations period is not tolled during the pendency of a federal habeas petition. As a result, the Sixth Circuit adopted a stay-andabeyance procedure to be applied to petitions containing unexhausted claims. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). In Palmer, the Sixth Circuit held that when the dismissal of a such a petition could jeopardize the timeliness of a subsequent petition, the district court should dismiss the unexhausted claims and stay further proceedings on the exhausted claims until the -4- petitioner has exhausted all of his claims in the state court. Id.; see also Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002). 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 appealed his conviction to the Michigan Court of Appeals and Michigan Supreme Court. The Michigan Supreme Court denied his application on April 2, 2013. Petitioner did not petition for certiorari to the United States Supreme Court, though the ninety-day period in which he could have sought review in the United States Supreme Court is counted under § 2244(d)(1)(A). See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The ninety-day period expired on Monday, July 1, 2013. Accordingly, Petitioner had one year, until July 1, 2014, in which to file his habeas petition. The petition was filed before that deadline, but the limitations period has since expired. The Palmer Court has indicated that thirty days is a reasonable amount of time for a petitioner to file a motion for post-conviction relief in state court, and another thirty days is a reasonable amount of time for a petitioner to return to federal court after he has exhausted his statecourt remedies. Palmer, 276 F.3d at 721. See also Griffin, 308 F.3d at 653 (holding that sixty days amounts to mandatory period of equitable tolling under Palmer). In the instant case, Petitioner has less than sixty days remaining before the statute of limitations expires. Petitioner therefore would not have the necessary 30 days to file a motion for post-conviction relief or the additional 30 days to return to this court before expiration of the statute of limitations. As a result, were the Court to -5- dismiss the petition without prejudice for lack of exhaustion, the dismissal would jeopardize the timeliness of any subsequent petition. Palmer, 276 F.3d at 781. The Supreme Court has held, however, that the type of stay-and-abeyance procedure set forth in Palmer should be available only in limited circumstances because over-expansive use of the procedure would thwart the AEDPA s goals of achieving finality and encouraging petitioners to first exhaust all of their claims in the state courts. See Rhines v. Weber, 544 U.S. 269, 277 (2005). In its discretion, a district court contemplating stay and abeyance should stay the petition pending prompt exhaustion of state remedies if there is good cause for the petitioner s failure to exhaust, if the petitioner s unexhausted claims are not plainly meritless and if there is no indication that the petitioner engaged in intentionally dilatory litigation tactics. Id. at 278. Consequently, if Petitioner wishes to pursue his unexhausted claims in the state courts, he must show cause within 28 days why he is entitled to a stay of these proceedings. Specifically, Petitioner must show: (1) good cause for his failure to exhaust before filing his habeas petition; (2) that his unexhausted claims are not plainly meritless; and (3) that he has not engaged in intentionally dilatory litigation tactics. See Rhines, 544 U.S. at 277-78. If Petitioner fails to meet the Rhines requirements for a stay or fails to timely comply with the Court s order, the Court will review only his exhausted claims. In the alternative, Petitioner may file an amended petition setting forth only his exhausted claims. An Order consistent with this Opinion will be entered. Dated: July 15, 2014 /s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE -6-
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