Opinion
Case No. 1:00-cv-746
October 26, 2000
OPINION
This is a habeas corpus action brought by a state prisoner pursuant to 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.), cert. denied. 400 U.S. 906 (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 for failure to demonstrate exhaustion of available state remedies.
Discussion I. Factual allegations
Petitioner is presently incarcerated at the Baraga Correctional Facility. On May 9, 1996, after a jury trial in the Kent County Circuit Court, petitioner was found guilty of felony-murder, assault with intent to commit murder, two counts of kidnaping, armed robbery, and felony-firearm. He was sentenced to nonparolable life (murder), parolable life (assault), two terms of 50 to 80 years (kidnaping), 20 to 40 years (robbery), to be served consecutively to a 2-year term for felony-firearm. Petitioner's appeals to the Michigan Court of Appeals, Michigan Supreme Court and United States Supreme Court were unsuccessful.
Petitioner claims that the decision by the United States Supreme Court was issued on October 4, 1999. He filed the instant habeas application no earlier than September 27, 2000, the date that it is signed. See In re Sims. 111 F.3d 45, 47 (6th Cir. 1997) (application deemed filed when handed to prison officials for mailing). Therefore, it appears that the present application is not barred by the one-year period of limitation. See 28 U.S.C. § 2244(d)(1)(A).
In this application for habeas relief, petitioner raises three grounds. First, he claims that the Double Jeopardy Clause was violated because he was convicted of felony-murder as well as the underlying predicate felonies of kidnaping and armed robbery. Second, he claims that his counsel was ineffective. Petitioner claims that there was exculpatory evidence that counsel failed to present, and that counsel failed to request a proper instruction which led to the convictions that violated the Double Jeopardy Clause. Third, petitioner claims that his Fifth Amendment privilege against self-incrimination was violated by the admission of a statement through the testimony of the police. Petitioner claims that he was a juvenile, and the police elicited the statement from him even though his mother told them not to question him and even though he was without counsel.
II. Lack of exhaustion
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 by 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; Silverburg v. Evitts, 993 F.2d 124, 126 (6th Cir. 1993); 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, 822F.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). Petitioner alleges that he presented his claims to the Michigan Court of Appeals, Michigan Supreme Court and United States Supreme Court. (See Pet. at 7.) However, the requirement is that petitioner raise each claim before the Michigan Court of Appeals and Michigan Supreme Court, not one or the other. Further, raising a claim by petition for writ of certiorari to the United States Supreme Court does not exhaust a claim.
Petitioner has attached copies of his state court appellate briefs to his petition. From them, it is clear that petitioner properly exhausted his double jeopardy claim. However, petitioner did not properly exhaust his claims of ineffective assistance of counsel or violation of the privilege against self-incrimination. These claims were not raised in his appeal to the Michigan Court of Appeals. (See Def. Appellant's Br. on Appeal, attach. to Pet.) Further, petitioner did not raise his specific claim that counsel was ineffective by failing to request an instruction on the double jeopardy issue in the Michigan Supreme Court. (See Def. Delayed Appl. for Leave to Appeal, attach. to Pet.)
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). 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 M.C.R. 6.500 et. seq. Under Michigan law, one such motion may be filed after August 1, 1995. M.C.R. 6.502(G)(1). Petitioner has not yet filed his one allotted motion. Therefore, the Court concludes that he has at least one available state remedy. Because petitioner has some claims that are exhausted and some that are not, his application must be dismissed as a mixed petition. Rose v. Lundy, 455 U.S. 509 (1982). Accordingly, the Court will dismiss petitioner's habeas corpus application without prejudice.
Conclusion
In light of the foregoing, the Court will summarily dismiss petitioner's application pursuant to Rule 4 for lack of exhaustion. The United States Supreme Court has recently held that once a petitioner has been made aware of the exhaustion requirement, no reason exists for him not to exhaust all potential claims before returning to federal court. A petitioner's subsequent failure to comply with the exhaustion requirement is grounds for dismissal with prejudice. Slack v. McDaniel, 120 S.Ct. 1595, 1606 (2000).
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 denied petitioner's application on procedural grounds of lack of exhaustion of available state court remedies. "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a [certificate of appealability] should issue 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." Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). 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 petitioner's claims for 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.
JUDGMENT
In accordance with the opinion entered this day:
IT IS ORDERED that petitioner's application for habeas corpus relief be DISMISSED without prejudice pursuant to Rule 4 of the Rules Governing § 2254 Cases for lack of exhaustion of available state court remedies. Petitioner is instructed that if petitioner returns to federal court, he shall bring only exhausted claims. The failure to comply with this order will result in the dismissal of all his claims with prejudice.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED as to each issue raised by the petitioner in this application for habeas corpus relief. Because petitioner has failed to meet the procedural hurdle of demonstrating exhaustion of his claims, he is unable to make a "substantial showing of a denial of a constitutional right." 28 U.S.C. § 2253(c)(2).