Opinion
Case No. 03-10051-BC.
July 28, 2006
OPINION AND ORDER HOLDING IN ABEYANCE THE PETITION FOR WRIT OF HABEAS CORPUS AND ADMINISTRATIVELY CLOSING THE CASE
The petitioner, James H. Winchester, presently confined at the Parr Highway Correctional Facility in Adrian, Michigan, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted of four counts of second-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(c). He was subsequently sentenced to four prison terms of four to fifteen years, to run concurrently. In his petition, the petitioner advances claims of ineffective assistance of counsel, attorney misconduct where his trial counsel refused to cooperate with his appellate counsel, and prosecutorial misconduct. The respondent has filed an answer urging this Court to dismiss the petition for writ of habeas corpus because none of the claims in the petition have been properly exhausted in the Michigan courts. The Court agrees that the petitioner has not exhausted his state court remedies with respect to the four claims that he has raised in his petition for writ of habeas corpus. Instead of dismissing the petition without prejudice, the Court will stay the proceedings under the terms outlined below to permit the petitioner to return to the state courts to exhaust his claims, failing which the petition shall be dismissed. The Court will administratively close the case.
I.
The petitioner was convicted of four counts of second-degree criminal sexual conduct following a jury trial in the St. Clair County, Michigan Circuit Court. On direct appeal, the petitioner filed a brief through counsel raising claims involving jury instructions, a motion to quash the information for lack of notice, the trial court's rulings preventing defense counsel from rehabilitating or impeaching certain witnesses or asking the victims questions related to their credibility, and the cumulative effect of all these errors. The petitioner's conviction was affirmed by the Michigan Court of Appeals in an unreported decision. People v. Winchester, 228314 (Mich.Ct.App. Apr. 26, 2002). The petitioner then filed a pro se application for leave to appeal in the Michigan Supreme Court. In the application, he raised two claims: first, that his trial counsel failed to cooperate with and withheld important papers from the petitioner's appellate attorney, prejudicing his appeal; and second, that trial counsel was ineffective for failing to have charges against the petitioner dismissed. The Michigan Supreme Court denied the petitioner leave to appeal. People v. Winchester, 467 Mich. 933, 655 N.W. 2d 567 (2002). On January 28, 2003, the petitioner signed and dated the instant application for writ of habeas corpus that he filed with this Court. The petitioner's four claims essentially state the following:
I. The petitioner was deprived of the effective assistance of counsel where counsel failed to have the criminal charge dismissed at the preliminary examination when the alleged victim failed to identify the petitioner as being the perpetrator.
II. The petitioner was deprived of the effective assistance of counsel where counsel failed to use available information while cross-examining the accusers at the second trial with conflicting testimony from the first trial.
III. The petitioner was prejudiced by attorney misconduct where trial counsel failed to assist the petitioner's appeal and withheld information from appellate counsel which would have had a direct effect on the brief and oral argument.
IV. The prosecutor engaged in misconduct where he sought to uphold the charges against the petitioner at the preliminary examination after the victim failed to identify the petitioner as the perpetrator.
The respondent contends that the petitioner failed to exhaust these claims in the Michigan state courts.
II.
State prisoners must exhaust available state remedies for their claims before a federal court may grant a writ of habeas corpus. 28 U.S.C. § 2254(b)(1); Baldwin v. Reese, 541 U.S. 27, 29 (2004). The doctrine of exhaustion of state remedies requires state prisoners to "fairly present" their claims as federal constitutional issues in the state courts before raising those claims in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) and (c); O'Sullivan v. Boerckel, 526 U.S. 838, 844 (1999); McMeans v. Brigano, 228 F.3d 674, 680-81 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the state's established appellate review process, including a petition for discretionary review to a state supreme court. O'Sullivan, 526 U.S. at 845. A prisoner "`fairly presents' his claim to the state courts by citing a provision of the Constitution, federal decisions using constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns." Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993); see also Prather v. Rees, 822 F.2d 1418, 1420 (6th Cir. 1987) (holding that "[o]rdinarily, the state courts must have had the opportunity to pass on defendant's claims of constitutional violations"). A Michigan petitioner must present each ground to both Michigan appellate courts before seeking federal habeas corpus relief. See Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002); see also Baldwin, 541 U.S. at 29. The petitioner bears the burden of showing that state court remedies have been exhausted. Rust, 17 F.3d at 160.
A review of the petitioner's state court appellate brief reveals that none of his four claims was ever presented to the Michigan Court of Appeals. However, the petitioner appears to have raised some of these issues for the first time in his application for leave to appeal to the Michigan Supreme Court: he raised his third claim as Issue I in his pro se application for leave to appeal to the Michigan Supreme Court, and he raised his first claim of ineffective assistance of counsel as part of Issue 2 in the application. The petitioner also mentioned his other two claims in a cover letter to the Clerk of the Michigan Supreme Court, which he sent with his application for leave to appeal, although he did not use the terms ineffective assistance of counsel or prosecutorial misconduct. When a petitioner raises a claim for the first time before the state courts on discretionary review, the petitioner has not "fairly presented" the claim to the state courts for exhaustion purposes. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Because the petitioner failed to present these claims in his appeal of right to the Michigan Court of Appeals, his presentation of these claims to the Michigan Supreme Court did not satisfy the exhaustion requirement of section 2254.
If the Court dismisses the current petition, however, the petitioner will be unable to re-file a petition for writ of habeas corpus following the exhaustion of his issues in the state courts because the one-year statute of limitations for filing his habeas corpus petition will have run. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996), amended 28 U.S.C. section 2244 to include a one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. See Vroman v. Brigano, 346 F.3d 598, 601 (6th Cir. 2003). The statute of limitations 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 a review. See 28 U.S.C. § 2244(d)(1)(A). The petitioner's application for leave to appeal was denied by the Michigan Supreme Court on December 30, 2002. The petitioner's conviction became final ninety days later, on March 31, 2003, when the deadline for filing a petition for writ of certiorari in the United States Supreme Court expired. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000) (holding that the last day on which a petitioner can file a petition for a writ of certiorari in the United States Supreme Court is not counted toward the one-year limitations period applicable to habeas corpus petitions). Although the petitioner filed his petition in this Court on February 21, 2003, the Supreme Court has held that the filing of a federal habeas corpus petition does not suspend the running of the one-year limitations period under 28 U.S.C. § 2244(d)(2). See Duncan v. Walker, 533 U.S. 167, 181-82 (2001). Thus, the limitations period expired for the petitioner on March 31, 2004.
Nevertheless, the filing of a defective habeas petition does not preclude federal district courts from "retain[ing] jurisdiction over a meritorious claim and stay[ing] further proceedings pending the complete exhaustion of state remedies," or from "deeming the limitations period tolled for [a habeas] petition as a matter of equity." Duncan, 533 U.S. at 182-183 (Stevens, J., concurring); see also Palmer v. Carlton, 276 F.3d 777, 780-81 (6th Cir. 2002) (implicitly adopting the course of action recommended by Justice Stevens). The Supreme Court has held that a federal court may stay a "mixed" federal habeas petition and hold further proceedings in abeyance pending resolution of state court post-conviction proceedings, provided that there is good cause for the failure to exhaust claims and the unexhausted claims are not "plainly meritless." Rhines v. Weber, 544 U.S. 269, 277 (2005) (noting that the AEDPA "does not deprive district courts of that authority, but it does circumscribe their discretion"). The Supreme Court specifically recognized that the "stay-and-abeyance" procedure is appropriate where outright dismissal of the petition would jeopardize the timeliness of a future petition. Id. at 275. Furthermore, the Supreme Court noted in Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), that a petitioner who was in doubt about whether his application for collateral relief in state court was "properly filed" could file a "protective" habeas corpus petition in federal court to preserve its timeliness and have it held in abeyance until state court remedies were exhausted.
The Sixth Circuit has also adopted the reasoning of Justice Stevens in Duncan v. Walker where a habeas petitioner raised a single unexhausted claim in his petition. In Hargrove v. Brigano, 300 F.3d 717, 718 (6th Cir. 2002), the Sixth Circuit held that a district court acted properly when it dismissed the unexhausted petition without prejudice, ordering that the time during which the petition had been pending in the district court would be equitably tolled when the petitioner refiled his petition after exhaustion. The Hargrove court noted that prospective equitable tolling "achieved the same result" as the stay-and-abeyance procedure. Hargrove, 300 F.3d at 721. It appears that the stay-and-abeyance procedure is appropriate in this case where the petitioner presents only unexhausted claims in his timely-filed petition.
In this case, the petitioner has good cause for failing to exhaust his habeas claims because appellate counsel failed to present them on direct review, his trial counsel allegedly failed to cooperate with his appellate counsel, and the petitioner, who is unlearned in the law, apparently was unaware of the issues that were raised in his appellate brief. The Court is satisfied that good cause has been shown for the failure to exhaust. See Pace, 544 U.S. at 416 (holding that a petitioner's reasonable confusion regarding state filing requirements will ordinarily constitute good cause for him to file in federal court). The Court further is satisfied that the claims are potentially meritorious and that the petitioner has not engaged intentionally in dilatory tactics. See Rhines, 544 U.S. at 278.
To avoid injustice, the Court will allow the petitioner to return to state court to exhaust his unexhausted claims and the Court will stay further proceedings in the current action, provided that the petitioner acts promptly. When a district court determines that a stay is appropriate pending exhaustion of state court remedies, the district court "should place reasonable time limits on a petitioner's trip to state court and back." Rhines, 544 U.S. at 278. To ensure that the petitioner does not delay in exhausting his state court remedies, the Court imposes upon the petitioner time limits within which he must proceed. See Palmer, 276 F.3d at 781. The petitioner must present his claims in state court within fifty-six days from the date of this Order. See id. Further, he must ask this Court to lift the stay within twenty-eight days of exhausting his state court remedies. See id. "If either condition of the stay is not met, the stay may later be vacated nunc pro tunc as of the date the stay was entered, and the petition may be dismissed." Palmer, 276 F.3d at 781.
The Michigan Court Rules furnish a process by which the petitioner may raise his unexhausted claims. The petitioner may file a motion for relief from judgment in the St. Clair Circuit Court pursuant to Michigan Court Rule 6.500 et seq., which allows the trial court to appoint counsel, seek a response from the prosecutor, expand the record, permit oral argument, and conduct an evidentiary hearing on the petitioner's claims. The petitioner may appeal the trial court's disposition of his motion for relief from judgment to the Michigan Court of Appeals and Michigan Supreme Court, and he may thereafter file a petition for writ of certiorari in the United States Supreme Court. To obtain relief in state court, he will have to show cause for failing to raise his unexhausted claims on direct review and resulting prejudice or a significant possibility of innocence. See Mich. Ct. R. 6.508(D)(3). However, he would have to make a similar showing here if the Court concluded that there was no state remedy to exhaust. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Hannah v. Conley, 49 F.3d 1193, 1195-96 n. 3 (6th Cir. 1995); Rust, 17 F.3d at 160. The petitioner's unexhausted claims should be addressed to, and considered by, the state courts in the first instance so the state court will have an opportunity to decide whether he has established "cause" for his failure to present this claim on direct review.
III.
Accordingly, it is ORDERED that the petition for writ of habeas corpus is HELD IN ABEYANCE. The petitioner may file a motion for relief from judgment with the state trial court on or before September 25, 2006. If the petitioner fails to file a motion for relief from judgment by that date, the Court will dismiss the petition for writ of habeas corpus without prejudice.
If the petitioner files a motion for relief from judgment in the trial court, he shall notify this Court that such papers have been filed. The case shall then be held in abeyance pending the petitioner's exhaustion of the unexhausted issues. The petitioner shall file an amended petition in this Court within twenty-eight (28) days after the conclusion of the state court proceedings. If the petitioner files an amended petition, the respondent shall file an answer addressing the allegations in the petition in accordance with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts within twenty-one (21) days thereafter.
If, and when, the petitioner returns to federal court with an amended petition, following exhaustion of state remedies, he shall use the same caption and case number as appears on this order.
It is further ORDERED that to avoid administrative difficulties the Clerk of Court CLOSE this case for statistical purposes only. Nothing in this order or in the related docket entry shall be considered a dismissal of this matter.
It is further ORDERED that upon receipt of a motion to reinstate the habeas petition following exhaustion of state remedies, the Court may order the Clerk to reopen this case for statistical purposes.