Blackman v. Klee, No. 5:2015cv13728 - Document 5 (E.D. Mich. 2015)
Court Description: OPINION AND ORDER Denying 1 Petition for Writ of Habeas Corpus filed by Anthony Blackman; Declining to Issue a Certificate of Appealablity and Leave to Appeal in forma pauperis. Signed by District Judge John Corbett O'Meara. (WBar)
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Blackman v. Klee Doc. 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ANTHONY BLACKMAN, Petitioner, CIVIL NO. 5:15-CV-13728 HONORABLE JOHN CORBETT O’MEARA UNITED STATES DISTRICT JUDGE v. PAUL KLEE, Respondent. ________________________________/ OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL IN FORMA PAUPERIS Anthony Blackman, (“Petitioner”), confined at the Gus Harrison Correctional Facility in Adrian, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenges his conviction for second-degree fleeing and eluding a police officer. For the reasons stated below, the petition for writ of habeas corpus is SUMMARILY DISMISSED WITHOUT PREJUDICE. I. Background Petitioner pleaded guilty in the Ingham County Circuit Court and was sentenced on March 4, 2015 to sixth three to two hundred and forty months in prison. By his own admission, petitioner did not appeal his conviction to the Michigan Court of Appeals or the Michigan Supreme Court. 1 Dockets.Justia.com Petitioner filed an application for a writ of habeas corpus, seeking relief from his conviction. II. Discussion The petition for writ of habeas corpus must be dismissed, because petitioner failed to exhaust his state court remedies. As a general rule, a state prisoner seeking federal habeas relief must first exhaust his or her available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and(c); Picard v. Connor, 404 U. S. 270, 275-78 (1971); Hannah v. Conley, 49 F. 3d 1193, 1195 (6th Cir. 1995). A petition for a writ of habeas corpus filed by a state prisoner shall not be granted unless the petitioner has exhausted his available state court remedies, there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the petitioner’s rights. See Turner v. Bagley, 401 F. 3d 718, 724 (6th Cir. 2005). A prisoner confined pursuant to a Michigan conviction must raise each habeas issue in both the Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal habeas corpus relief. Hafley v. Sowders, 902 F. 2d 480, 483 (6th Cir. 1990). The Antiterrorism and Effective Death Penalty Act (AEDPA) preserves the traditional exhaustion requirement, which mandates dismissal of a habeas petition containing claims that a petitioner has a right to raise in the state courts but has failed to do so. Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999). The failure to exhaust state court remedies may be raised sua sponte by a federal court. See Benoit v. Bock, 237 F. Supp. 2d 804, 806 (E.D. Mich. 2003); 28 U.S.C. § 2254(b)(3). 2 A habeas petitioner has the burden of proving that he or she has exhausted his or her state court remedies. See Rust v. Zent, 17 F. 3d 155, 160 (6th Cir. 1994). Federal habeas corpus relief is unavailable to a state prisoner who fails to allege that he or she has exhausted his or her available state court remedies. See Granville v. Hunt, 411 F. 2d 9, 11 (5th Cir. 1969). The instant petition is subject to dismissal, because petitioner failed to allege or indicate in his petition that he has exhausted his state court remedies. See Peralta v. Leavitt, 56 Fed. Appx. 534, 535 (2nd Cir. 2003); See also Fast v. Wead, 509 F. Supp. 744, 746 (N.D. Ohio 1981). Petitioner, in fact, acknowledges that he did not exhaust his claims prior to filing his habeas petition. 1 An exception to the exhaustion requirement exists only if there is no opportunity to obtain relief in the state courts or if the corrective process is so clearly deficient as to render futile any effort to obtain relief in the state courts. Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Sitto v. Bock, 207 F. Supp. 2d 668, 676 (E.D. Mich. 2002). A habeas petitioner, however, has the burden of showing that all available state court remedies have been exhausted or that exceptional circumstances exist which would make exhaustion unnecessary. Doty v. Lund, 78 F. Supp. 2d 898, 901 (N.D. Iowa 1999). Petitioner acknowledges that he failed to appeal his conviction to the state courts 1 There is no indication from the Michigan Court of Appeals’ website or from Westlaw that the petitioner ever appealed his state court conviction to the Michigan Court of Appeals or the Michigan Supreme Court. The Court obtained this information from the Michigan Court of Appeals’ website, coa.courts.mi.gov/, and from Westlaw’s website, www.westlaw.com. Public records and government documents, including those available from reliable sources on the Internet, are subject to judicial notice. See United States ex. rel. Dingle v. BioPort Corp., 270 F. Supp. 2d 968, 972 (W.D. Mich. 2003). A federal district court is also permitted to take judicial notice of another court’s website. See e.g. Graham v. Smith, 292 F. Supp. 2d 153, 155, n. 2 (D. Me. 2003). 3 but argues that it would be futile to do so because the time for filing an appeal has expired. The exhaustion doctrine, in the context of habeas cases, turns upon an inquiry of whether there are available state court procedures for a habeas petitioner to exhaust his claims. See Adams v. Holland, 330 F. 3d 398, 401 (6th Cir. 2003). Under M.C.R. 7.205(F)(3), petitioner had six months to file a delayed application for leave to appeal with the Michigan Court of Appeals. Because petitioner was sentenced on March 4, 2015, the time for him to seek direct appellate review of his case has expired. This does not mean, however, that petitioner does not have an available state court remedy with which to exhaust his claims. Petitioner could exhaust his claims regarding his state court conviction by filing a post-conviction motion for relief from judgment under Michigan Court Rule 6.500 with the Ingham County Circuit Court. See Wagner v. Smith, 581 F. 3d 410, 419 (6th Cir. 2009). A trial court is authorized to appoint counsel for petitioner, seek a response from the prosecutor, expand the record, permit oral argument, and hold an evidentiary hearing. M.C.R. 6.505-6.507, 6.508 (B) and (C). Denial of a motion for relief from judgment is reviewable by the Michigan Court of Appeals and the Michigan Supreme Court upon the filing of an application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997). Petitioner, in fact, is required to appeal the denial of his post-conviction motion to the Michigan Court of Appeals and the Michigan Supreme Court in order to properly exhaust any claims that he would raise 4 in his post-conviction motion. See e.g. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002). Under Michigan law, a defendant’s criminal conviction is reviewable in accordance with M.C.R. 6.500 et. seq. when the time limitation for filing an application for leave to appeal has expired. See People v. Caston, 228 Mich. App. 291, 297-98; 579 N.W. 2d 368 (1998). Because petitioner can exhaust his claims by filing a postconviction motion for relief from judgment, any habeas challenge to his state court convictions is premature, thus, his petition is subject to dismissal. See e.g. Enochs v. Walton, No. 2:12-CV-11507, 2012 WL 1401729, at *5 (E.D. Mich. Apr. 19, 2012). Although a district court has the discretion to stay a mixed habeas petition in order to prevent a habeas containing both exhausted and unexhausted claims to allow the petitioner to present his unexhausted claims to the state court in the first instance, See Rhines v. Weber, 544 U.S. 269 (2005), there are no exceptional or unusual circumstances present which would justify holding the instant petition for writ of habeas corpus in abeyance pending petitioner’s return to the state courts to exhaust his claims, rather than dismissing it without prejudice. A common circumstance calling for abating a habeas petition arises when the original petition was timely filed, but a second, exhausted habeas petition would be time barred by the AEDPA’s statute of limitations found in 28 U.S.C. § 2244(d)(1). See Hargrove v. Brigano, 300 F. 3d 717, 720-21 (6th Cir. 2002). For purposes of commencing the one year limitations period pursuant to § 2244(d)(1)(A), a state-court judgment becomes “final” when direct review by the state court ends or when the time to seek direct review expires, whichever comes later. See Wilberger v. Carter, 35 5 Fed. Appx. 111, 114 (6th Cir. 2002). Petitioner was sentenced on March 4, 2015. Petitioner had six months after his sentence pursuant to M.C.R. 7.205(F)(3) to file a delayed application for leave to appeal. Because petitioner never filed a direct appeal from his conviction, his judgment of sentence became finalized, for the purposes of § 2244(d)(1)(A), six months year after the sentencing, when the time limit for filing a direct appeal in the Michigan Court of Appeals expired pursuant to M.C.R. 7.205(F)(3). See Williams v. Birkett, 670 F.3d 729, 731 (6th Cir. 2012). Petitioner’s conviction became final on September 4, 2015. Petitioner filed the instant petition with this Court on October 19, 2015, after only a month and a half had elapsed under the statute of limitations. Moreover, 28 U.S.C. § 2244(d)(2) expressly provides that the AEDPA’s one year statute of limitations is tolled during the pendency of any state post-conviction motion filed by petitioner. Because petitioner has almost an entire year remaining under the limitations period, and the unexpired portion of that period would be tolled during the pendency of petitioner’s state post-conviction proceedings, petitioner would not be prejudiced if his habeas petition was dismissed without prejudice during the pendency of his motion for post-conviction relief. Thus, a stay of the proceedings is not necessary or appropriate to preserve the federal forum for petitioner’s claims. See Schroeder v. Renico, 156 F. Supp. 2d 838, 845-46 (E.D. Mich. 2001). III. Conclusion The Court summarily dismisses the petition for writ of habeas corpus without 6 prejudice. The Court will also deny a certificate of appealability. In order to obtain a certificate of appealability, a prisoner must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is required to show that reasonable jurists could debate whether, or agree that, the petition should have been resolved in a different manner, or that the issues presented were adequate to deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). When a district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claims, a certificate of appealability should issue, and an appeal of the district court’s order may be taken, if the petitioner shows that jurists of reason would find it debatable whether the petitioner 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. Id. When a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petition should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Id. “The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254. The Court declines to issue a certificate of appealability, because “jurists of reason” would not find it debatable whether this Court was correct in its procedural ruling 7 that petitioner had failed to exhaust an available state court remedy with respect to his claim or claims. See Colbert v. Tambi, 513 F. Supp. 2d 927, 939 (S.D. Ohio 2007). The Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. See Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001). IV. ORDER Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is SUMMARILY DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. IT IS FURTHER ORDERED that leave to appeal in forma pauperis is DENIED. s/John Corbett O’Meara United States District Judge Date: October 22, 2015 I hereby certify that a copy of the foregoing document was served upon the parties of record on this date, October 22, 2015, using the ECF system and/or ordinary mail. s/William Barkholz Case Manager 8
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