-ESC Cribbs #715114 v. Prelesnik, No. 1:2011cv00848 - Document 2 (W.D. Mich. 2011)

Court Description: OPINION; Order and Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION COREY J. CRIBBS, Petitioner, Case No. 1:11-cv-848 v. Honorable Janet T. Neff JOHN PRELESNIK, 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 presently is incarcerated at the Oaks Correctional Facility. On May 3, 2011, Petitioner pleaded nolo contendere in the Calhoun County Circuit Court to two counts of assault with a dangerous weapon, MICH. COMP. LAWS § 750.82, and one count of being a felon in possession of a firearm (felony-firearm), MICH. COMP. LAWS § 750.227B.1 On May 3, 2010, the trial court sentenced Petitioner to prison terms of one year and three months to four years for each of the assault convictions and two years for the felony-firearm conviction. Petitioner appealed his convictions and sentences to the Michigan Court of Appeals. On January 12, 2011, the Michigan Court of Appeals denied his delayed application for leave to appeal for lack of merit in the grounds presented.2 Petitioner did not seek leave to appeal in the Michigan Supreme Court. In his application for habeas corpus relief, Petitioner states that he filed an Ex Parte Writ of Habeas Corpus in the Calhoun County Circuit Court. Petitioner, however, does not provide any information regarding the outcome of his motion. Petitioner raises the following four grounds for habeas corpus relief in his application: I. PETITIONER WAS DENIED HIS 6TH AMENDMENT RIGHT TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENSE. II. PETITIONER WAS DENIED HIS RIGHT TO CONFRONTATION AND 1 The Court obtained information regarding Petitioner s conviction from the MDOC Offender Tracking Information System website at http://mdocweb.state.mi.us/OTIS2/otis2profile.aspx?mdocNumber=715114. 2 In his application for habeas corpus relief, Petitioner did not provide the date of the Michigan Court of Appeals decision. The Court obtained information regarding Petitioner s appeal from the Michigan Court of Appeals website at http://coa.courts.mi.gov/resources/asp/viewdocket.asp?casenumber=301582. -2- CROSS[-]EXAMINATION. III. PETITIONER WAS DENIED HIS RIGHT TO APPELLATE REVIEW AND POST[-]CONVICTION WRIT OF HABEAS CORPUS. IV. [PETITIONER] WAS DENIED [A] COMPETENCY HEARING AND CHARGED AND SENTENCED TWICE FOR THE SAME OFFENSE. (Pet., docket #1, Page ID#4-5.) 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). According to the allegations in the petition, Petitioner has not yet filed an application for leave to appeal to the Michigan Supreme Court. Because Petitioner did not present -3- his habeas grounds to the Michigan Supreme Court, they are unexhausted. An applicant has not exhausted available state-court remedies if he has the right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). Although the 56-day period for filing in the Michigan Supreme Court has expired, Petitioner has at least one available procedure by which to raise the 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). It does not appear that Petitioner has filed a motion for relief from judgment under Mich. Ct. R. 6.500 in the trial court. 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 appealed his conviction to the Michigan Court of Appeals, which denied his delayed application for leave to appeal on January 12, 2011. Thereafter, Petitioner had 56 days in which to file a delayed application for leave to appeal in the Michigan Supreme Court. Petitioner does not allege that he appealed 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, -4- 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 U.S. 522, 530-31(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 v. United States, 166 F.3d 565, 577 (3rd Cir. 1999); 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 March 9, 2011. Accordingly, Petitioner has one year, until March 9, 2012, in which to file his habeas petition. In Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002), the Sixth Circuit held that when the dismissal of a mixed 3 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. The court indicated that thirty days was a reasonable amount of time for a petitioner to file a motion for post-conviction relief in state court, and another thirty days was a reasonable amount of time for a petitioner to return to federal court after he has exhausted his state-court remedies.4 The instant case does not present a mixed petition because none of Petitioner s claims is exhausted. It is unclear whether Palmer applies to a non-mixed petition. Assuming Palmer applies, Petitioner has more than sixty days 3 A mixed petition is a habeas corpus petition that contains both exhausted and unexhausted claims. 4 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). -5- remaining in the limitations period, and, thus, he is not in danger of running afoul of the statute of limitations so long as he diligently pursues his state court remedies. Therefore, a stay of these proceedings is not warranted. 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., 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 the issuance of blanket denials -6- 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 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. A Judgment consistent with this Opinion will be entered. Dated: September 9, 2011 /s/ Janet T. Neff Janet T. Neff United States District Judge -7-

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