McCarthy v. Stegall

Full title: David Miller McCarthy, Petitioner, v. Jimmy Stegall, Respondent

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Oct 24, 2000

Case Number: 00-70244 (E.D. Mich. Oct. 24, 2000)

Opinion

Case Number: 00-70244

October 24, 2000

OPINION AND ORDER GRANTING PETITIONER'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE

Honorable Gerald E. Rosen, United States District Judge

I. Introduction

Petitioner David Miller McCarthy, a state inmate currently incarcerated at the Macomb Correctional Facility in New Haven, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner now moves this Court to dismiss his habeas corpus petition without prejudice. For the reasons set forth below, Petitioner's motion is granted.

II. Analysis

On January 14, 2000, Petitioner filed the pending habeas corpus petition challenging his 1998 convictions for assault with intent to murder, destruction of property, fleeing a police officer, and driving with expired license plates. On August 1, 2000, Petitioner filed a motion to supplement his habeas corpus petition to add a claim challenging the trial court's acceptance of his nolo contendere plea and the trial court's subsequent refusal to allow him to withdraw his plea. Respondent filed a response to Petitioner's motion to supplement in which Respondent stated that the claim Petitioner sought to add to his habeas corpus petition had not been exhausted in state court. Petitioner then filed the motion to dismiss the petition without prejudice now before the Court.

A Michigan prisoner challenging his confinement by way of a habeas corpus petition in this Court must first exhaust all available remedies in the courts of the state wherein he was convicted. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wong v. Money, 142 F.3d 313, 322 (6^th Cir. 1998). "Ordinarily, the state courts must have had the opportunity to pass on defendant's claims of constitutional violations." Prather v. Rees, 822 F.2d 1418 (6^th Cir. 1987). If a petition contains both exhausted and unexhausted claims, it must be dismissed so that the petitioner can exhaust all claims before seeking federal habeas relief. Rose v. Lundy, 455 U.S. 509 (1982); Rust v. Zent, 17 F.3d 155, 160 (6^th Cir. 1994). The petitioner bears the burden of showing that state court remedies have been exhausted. Prather, 822 F.2d at 1420, n. 3.

In the instant case, Petitioner states that the claim with which he would like to supplement his habeas corpus petition is unexhausted. He seeks an opportunity to return to state court so that he may exhaust this claim. It is the practice of this Court to dismiss without prejudice habeas petitions that contain unexhausted claims, rather than to retain jurisdiction over cases that ultimately may not be pursued. This provides state courts with the first opportunity to correct constitutional errors. The United States Supreme Court has noted that there is a "strong presumption" in favor of requiring prisoners to pursue available state remedies. Granberry v. Greer, 481 U.S. 129, 131 (1987). Accordingly, the Court grants Petitioner's motion.

III. Conclusion

For the foregoing reasons, IT IS ORDERED that Petitioner's motion to dismiss petition for writ of habeas corpus without prejudice is GRANTED so that Petitioner may return to state court to exhaust his unexhausted claim. The matter is DISMISSED WITHOUT PREJUDICE.