Opinion
Case Number: 2:17-CV-11122
04-20-2017
MARSHALL BRABO, Petitioner, v. SHERMAN CAMPBELL, Respondent.
OPINION AND ORDER DENYING PETITIONER'S MOTION TO STAY PROCEEDINGS AND DISMISSING PETITION WITHOUT PREJUDICE
I. Introduction
Michigan state prisoner Marshall Brabo filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting he is being held in violation of his constitutional rights. Petitioner was convicted in the Kent County Circuit Court of assault with intent to commit murder, MICH. COMP. LAWS § 750.83. At the same time he filed his petition, Petitioner filed a motion to stay these proceedings so that he can raise unexhausted claims in state court. The Court denies Petitioner's motion for a stay and dismisses the petition without prejudice. The Court also denies a certificate of appealability.
II. Procedural History
Petitioner was convicted by a jury in Kent County Circuit Court. On December 19, 2013, he was sentenced to 24 to 36 years' imprisonment. Petitioner filed an appeal of right with the Michigan Court of Appeals. The Michigan Court of Appeals affirmed Petitioner's convictions. People v. Brabo, No. 320135, 2015 WL 3604597 (Mich. Ct. App. Aug. 22, 2013) (unpublished). Petitioner then filed an application for leave to appeal with the Michigan Supreme Court. The Michigan Supreme Court denied leave to appeal. People v. Brabo, 499 Mich. 914 (Mich. May 2, 2016).
On August 29, 2016, Petitioner filed a motion to vacate void judgment in the trial court. The trial court denied the motion. People v. Brabo, No. 13-02255 (Kent County Cir. Ct. Oct. 3, 2016). Petitioner filed a motion for reconsideration, which the trial court also denied. People v. Brabo, No. 13-02255 (Kent County Cir. Ct. Dec. 5, 2016). It does not appear that Petitioner has yet filed an application for leave to appeal the trial court's decision, but the time for doing so has not yet expired. See Mich. Ct. R. 7.205(G)(3).
Petitioner filed his federal habeas petition and motion for stay on April 3, 2017.
III. Discussion
Petitioner seeks a stay in this matter while he exhausts his state court remedies for additional claims of ineffective assistance of counsel which he did not present in state court on direct appeal. Petitioner has not shown that he would lack sufficient time under 28 U.S.C. § 2244(d) to file a fully exhausted petition if his original petition is dismissed without prejudice. The Court therefore will deny the petitioner's motion.
A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. §2254 must first exhaust all state remedies. See O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("state prisoners must give the state courts one full fair opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"). To satisfy this requirement, the claims must be "fairly presented" to the state courts, meaning that the prisoner must have asserted both the factual and legal bases for the claims in the state courts. See McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The claims must also be presented to the state courts as federal constitutional issues. See Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). While the exhaustion requirement is not jurisdictional, a "strong presumption" exists that a petitioner must exhaust available state remedies before seeking federal habeas review. See Granberry v. Greer, 481 U.S. 129, 131, 134-35 (1987). The burden is on the petitioner to prove exhaustion. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
Federal habeas law provides that a habeas petitioner is only entitled to relief if he can show that the state court adjudication of his claims resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d). The state courts must first be given a fair opportunity to rule upon Petitioner's habeas claims before he can present those claims to this Court. Otherwise, the Court cannot apply the habeas standard of 28 U.S.C. § 2254. Furthermore, the state court proceedings may result in the reversal of Petitioner's convictions, thereby mooting the federal questions presented. See Humphrey v. Scutt, No. 08-CV-14605, 2008 WL 4858091, *1 (E.D. Mich. Nov. 5, 2008) (citing Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir.1983), and Woods v. Gilmore, 26 F. Supp. 2d 1093, 1095 (C.D. Ill. 1998)). Non-prejudicial dismissal of the petition is warranted under such circumstances.
A federal district court has discretion to stay a habeas petition to allow a petitioner to present unexhausted claims to the state courts in the first instance and then return to federal court on a perfected petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005). However, stay and abeyance is available only in "limited circumstances" such as when the one-year statute of limitations applicable to federal habeas actions poses a concern, and when the petitioner demonstrates "good cause" for the failure to exhaust state court remedies before proceeding in federal court and the unexhausted claims are not "plainly meritless." Id. at 277.
Petitioner has not shown the need for a stay. Although he may be concerned that the one-year statute of limitations applicable to federal habeas actions, see 28 U.S.C. § 2244(d), poses a problem, it does not. The one-year period does not begin to until 90 days after the conclusion of direct appeal. Gonzalez v. Thaler, 565 U.S. 653-54 (2012) (stating that a conviction becomes final when the time for filing a certiorari petition expires). The Michigan Supreme Court denied leave to appeal on May 2, 2016, and the time for seeking a writ of certiorari with the United States Supreme Court expired 90 days later - on July 31, 2016. Petitioner filed a motion to vacate void judgment in the trial court on August 29, 2016. That motion tolled the limitations period after only 29 days elapsed. The limitations period remained tolled until December 5, 2016, when the trial court denied his motion for reconsideration. Petitioner filed the pending petition on April 3, 2017, after another 119 days of the limitations period elapsed. While the time in which this case has been pending in federal court is not statutorily tolled, see Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (a federal habeas petition is not an "application for State post-conviction or other collateral review" within the meaning of 28 U.S.C. § 2244(d)(2) so as to statutorily toll the limitations period), such time may be equitably tolled. See, e.g., Johnson v. Warren, 344 F. Supp. 2d 1081, 1088-89 (E.D. Mich. 2004). The limitations period will also be tolled during the time in which any additional properly filed post-conviction or collateral actions are pending in the state courts. See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-221 (2002). Petitioner has approximately seven months to fully exhaust his state court remedies and return to federal court should he wish to do so.
Thus, even assuming that Petitioner has not engaged in "intentionally dilatory tactics" and has shown "good cause" for failing to fully exhaust issues in the state courts before seeking federal habeas relief, he has not shown the need for a stay. Lastly, his unexhausted claims concern matters of federal law which do not appear to be "plainly meritless." The state courts should be given a fair opportunity to rule upon those claims. Given the foregoing circumstances, a stay is unwarranted and a non-prejudicial dismissal of the habeas petition is appropriate.
IV. Conclusion
Accordingly, the Court DENIES Petitioner's Motion to Stay (ECF No. 4) and DISMISSES WITHOUT PREJUDICE the petition for a writ of habeas corpus. Further, the Court DENIES Petitioner's Motion for Appointment of Counsel (ECF No. 3).
Before Petitioner may appeal the Court's decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a federal court denies a habeas claim on procedural grounds without addressing the merits, a certificate of appealability should issue if it is shown that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Reasonable jurists would not debate the correctness of the Court's procedural ruling. Accordingly, the Court DENIES a certificate of appealability.
SO ORDERED. Dated: April 20, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 20, 2017, by electronic and/or ordinary mail and also on
Marshall Brabo #897749, Gus Harrison Correctional Facility,
2727 E. Beecher Street, Adrian, MI 49221.