Hawkins #180950 v. Woods, No. 2:2014cv00157 - Document 9 (W.D. Mich. 2014)
Court Description: OPINION ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)
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UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN NORTHERN DIVISION KELVIN LEON HAWKINS, Petitioner, Case No. 2:14-cv-157 v. Honorable R. Allan Edgar 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 Ait 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 Ascreen 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 Kelvin Leon Hawkins is a state prisoner incarcerated at Chippewa Correctional Facility. In 2012, he was convicted of first-degree criminal sexual conduct (CSC I), Mich. Comp. Laws ' 750.520b(1)(e), second-degree criminal sexual conduct (CSC II), Mich. Comp. Laws ' 750.520c(1)(e), and kidnapping, Mich. Comp. Laws ' 750.349. The Calhoun County Circuit Court sentenced him as a fourth-offense felony offender, Mich. Comp. Laws ' 769.12, to concurrent prison terms of 50 to 75 years for the CSC I and kidnapping convictions and 19 to 75 years for the CSC II conviction. Petitioner appealed the judgment of conviction and sentence to the Michigan Court of Appeals and the Michigan Supreme Court, asserting that: (1) the trial court erred in admitting evidence of similar acts; (2) there was insufficient evidence to support a conviction for kidnapping; and (3) the trial court erred in its scoring of various sentencing variables when determining Petitioner=s sentence. The Michigan Court of Appeals affirmed the judgment of conviction and sentence on April 16, 2013. The Michigan Supreme Court denied leave to appeal on October 28, 2013. In his application for habeas corpus relief (docket #1), Petitioner asserts the same three grounds for relief that he asserted on appeal from his conviction. In a motion filed contemporaneously with the petition (docket #3), Petitioner requests a stay in this action so that he may exhaust additional claims that were not raised on appeal before the Michigan appellate courts. ï 2ï 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 Afairly present@ federal claims so that state courts have a Afair 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). A[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. 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). In this case, it is clear that Petitioner intends to assert one or more claims that were not previously raised in the Michigan appellate courts, and that he intends to bring those claims in a motion for relief from judgment under subchapter 6.500 of the ï 3ï Michigan Court Rules. Under Michigan law, one such motion may be filed after August 1, 1995. MICH. CT. R. 6.502(G)(1). It appears that 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 unexhausted claims, Petitioner must file a motion for relief from judgment in the Calhoun 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. Because Petitioner has some claims that are exhausted and some that are not, his petition is Amixed.@ Under Rose v. Lundy, 455 U.S. 509, 522 (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 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-and-abeyance 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). ï 4ï 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 limitations period runs from Athe 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 the Michigan Supreme Court. The Michigan Supreme Court denied his application on October 28, 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, January 27, 2014. Accordingly, absent tolling, Petitioner would have one year from that date, until January 27, 2015, in which to file his habeas petition. 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 state-court remedies. Palmer, 276 F.3d at 781. See also Griffin, 308 F.3d at 653 (holding that sixty days amounts to a mandatory period of equitable tolling under Palmer). Petitioner has more than sixty days remaining in his limitations period. Assuming that Petitioner diligently pursues his state-court motion for relief from judgment and promptly returns to this Court after the Michigan Supreme Court issues a decision on appeal, he is not in danger of running afoul of the statute of limitations. 1 Therefore a stay of these proceedings is not warranted. 1 Should The running of the statute of limitations is tolled while Aa 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. ï 5ï Petitioner decide not to pursue his unexhausted claims in the state courts, he may file a new petition raising only exhausted claims at any time before the expiration of the limitations period. Conclusion For the foregoing reasons, the Court will deny Petitioner=s motion for a stay and dismiss the petition for failure to exhaust available state-court remedies. ' 2244(d)(2). Thus, assuming that Petitioner properly files his motion for relief from judgment, and properly appeals a decision on that motion to the Michigan Court of Appeals and then the Michigan Supreme Court, the statute of limitations will be tolled from the time that he files his motion until the time that the Michigan Supreme Court issues a final decision on appeal. The statute is not tolled during the time that a petitioner petitions for writ of certiorari in the United Stated Supreme Court. Lawrence v. Florida, 549 U.S. 327, 332 (2007). ï 6ï 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 Asubstantial 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 Asomewhat 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 Aintrinsically 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 of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must Aengage 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, ï 7ï 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 Awhen 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. AWhere 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: 8/25/2014 /s/ R. Allan Edgar R. Allan Edgar United States District Court Judge ï 8ï
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