Bowker #282899 v. Howes, No. 1:2010cv00327 - Document 6 (W.D. Mich. 2010)
Court Description: OPINION; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION TIMOTHY SCOTT BOWKER, Petitioner, Case No. 1:10-cv-327 v. Honorable Robert J. Jonker CAROL HOWES, 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 will dismiss the petition without prejudice for failure to exhaust available state-court remedies. Discussion I. Factual allegations Petitioner is incarcerated in the Lakeland Correctional Facility. He pleaded guilty in the Cass County Circuit Court in two related cases. In Case No. 0810229-FH, he pleaded guilty to breaking and entering a building with intent, MICH . COMP. LAWS § 750.110; receiving and concealing a stolen motor vehicle, MICH . COMP. LAWS § 750.535(7); and being a third habitual offender, MICH . COMP . LAWS § 769.10. In Case No. 0810319-FH, Petitioner pleaded guilty to operating a motor vehicle while intoxicated, MICH . COMP. LAWS § 257.625; and to being a second habitual offender, MICH . COMP. LAWS § 769.10. On December 12, 2008, the trial court sentenced Petitioner to respective prison terms of five to twenty years and three to ten years in Case No. 0810229-FH and two-and-a-half to seven years in Case No. 0810319-FH. The trial court ordered the sentences in both cases to be served concurrently, but consecutive to the remainder of his sentences on previous offenses that he now is serving as a result of violating his parole. Petitioner filed an application for leave to appeal in the Michigan Court of Appeals, raising three claims of error. First, he claimed that he was entitled to resentencing because the trial court misscored Offense Variables 10 and 19. Second, Petitioner argued that he was sentenced based upon inaccurate information. Third, Petitioner claimed that he had a right, which he did not waive, to be sentenced by the judge who accepted his guilty plea. The Michigan Court of Appeals denied his application for leave to appeal on June 25, 2009. Petitioner presented the same three claims in the Michigan Supreme Court. The supreme court denied his application for leave to appeal on December 9, 2009. -2- Petitioner filed a motion for relief from judgment in the Cass County Circuit Court on or about January 1, 2010, raising new claims of error. The court denied his motion January 27, 2010. It does not appear that Petitioner has appealed that order in the Michigan appellate courts. In his application for habeas corpus relief, Petitioner raises the three claims he raised on direct appeal, as well as new claims presented in his motion for relief from judgment. II. Exhaustion of 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 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). Petitioner satisfied the exhaustion requirement with regard to the three claims that -3- he presented on direct appeal to the Michigan Court of Appeals and the Michigan Supreme Court. However, Petitioner fails to meet his burden with regard to the issues presented for the first time in his motion for relief from judgment because he has not presented those claims on appeal in the Michigan appellate courts. See O Sullivan, 526 U.S. at 845; Duncan, 513 U.S. at 365-66. Petitioner has one year from the date his motion for relief from judgment was denied, until January 27, 2011, to file a delayed application for leave to appeal in the Michigan Court of Appeals. See M.C.R. 7.205(F). Consequently, he has an available state-court remedy. Because Petitioner has some claims that are exhausted and some that are not, his petition is mixed. Under Rose v. Lundy, 455 U.S. 509, 22 (1982), district courts are directed to dismiss mixed petitions 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 could 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 mixed petitions. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). In Palmer, the Sixth Circuit held that when the dismissal of a mixed petition could jeopardize the timeliness of a subsequent petition, the district court should dismiss only the unexhausted claims and stay further proceedings on the remaining portion until the petitioner has exhausted his claims in the state court. Id.; see also Rhines v. Weber, 544 U.S. 269, 277 (2007) (approving stay-and-abeyance procedure); Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002). -4- 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 December 9, 2009. 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 March 9, 2010. Accordingly, absent tolling, Petitioner would have had one year, until March 9, 2011, in which to file his habeas petition. The running of the statute of limitations is tolled when a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. 28 U.S.C. § 2244(d)(2); see also Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (limiting the tolling provision to only State, and not Federal, processes); Artuz v. Bennett, 531 U.S. 4, 8 (2000) (defining properly filed ). The statute of limitations was tolled when Petitioner filed his motion for relief from judgment on or about January 1, 2010. At that time, the one year statute of limitations had not yet began to run. The statute of limitations will remain tolled until the Michigan Supreme Court issues a decision on Petitioner s motion for relief from judgment. See Carey v. Saffold, 536 U.S. 214, 219-20 (2002). Thereafter, Petitioner will have the full one-year statute of limitations to file a new habeas corpus petition presenting all of his exhausted claims. Under these circumstances, a stay of these proceedings is not warranted under Palmer. Should Petitioner decide not to pursue his unexhausted claims in the state courts, he may file a new petition raising only his three exhausted claims at any time before the expiration of the limitations period. -5- Conclusion For the foregoing reasons, the Court will dismiss the petition for failure to exhaust available 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 already has determined that the action is so lacking in merit 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. Comm r of Corr. 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 -6- 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 ground 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 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. An Order and Judgment consistent with this Opinion will be entered. Dated: May 12, 2010 /s/ Robert J. Jonker ROBERT J. JONKER UNITED STATES DISTRICT JUDGE -7-
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