Opinion
Civil No. 00-CV-71557-DT
April 20, 2001
OPINION AND ORDER DISMISSING THE INSTANT PETITION FOR A WRIT OF HABEAS CORPUS WITHOUT PREJUDICE
I. Introduction
Herman L. Dixon, A/K/A Siddiqquii Abdul Sadah Mohhommed ("Petitioner"), presently confined at the Marquette Branch Prison in Marquette, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his convictions after a 1999 bench trial in the St. Clair County Circuit Court for two counts of felonious assault, M.C.L.A. 750.82(1) and one count each of possession of a firearm in the commission of a felony, M.C.L. 750.227b, and felon in possession of a firearm, M.C.L. 750.224f. Petitioner was sentenced as a second felony habitual offender, M.C.L. 769.10, to concurrent terms of imprisonment of two to six years for each of the felonious assault convictions and two to seven years and six months for the possession of a firearm by a convicted felony conviction. Petitioner was also sentenced to a mandatory consecutive two year prison term for his felony firearm conviction. For the reasons set forth below, the petition shall be dismissed without prejudice, subject to petitioner's right to reopen the petition with the same docket number and with benefit of the same filing date following exhaustion of state court remedies.
II. Procedural Background
The instant habeas petition was filed on March 17, 2000. The petition presents the following issues for habeas review:
Under the prison mailbox rule, a federal habeas petition is filed when the prisoner gives his petition to prison officials for mailing to the federal courts. Hudson v. Martin, 68 F. Supp.2d 798, 799, fn. 2 (E.D. Mich. 1999) (Tarnow, J.). Absent evidence to the contrary, a federal court will assume that a prisoner gave his habeas petition to prison officials on the date he signed it, for the purposes of the AEDPA's one year limitations period. Id., citing to Torres v. Irvin, 33 F. Supp.2d 257, 270 (S.D.N.Y. 1998); See also Colarte v. Leblanc, 40 F. Supp.2d 816, 817 (E.D. La. 1999). Because Petitioner's habeas petition is signed and dated March 17, 2000, and no contrary evidence appears in the record, this court assumes that this was the date that Petitioner actually filed his petition with this court.
I. Petitioner's conviction for being a felon in possession of a firearm violates his right to due process of law because petitioner's prior felony conviction resulted from ineffective assistance of counsel, Fourth Amendment violations, and other illegalities and petitioner not made aware that, after satisfaction of a term of probation, he still could not lawfully possess a shotgun.
II. Petitioner's sentencing as a habitual offender is unlawful, because his prior conviction upon which this sentence was based resulted from ineffective assistance of counsel and other illegalities.
III. Petitioner received ineffective assistance of counsel at his 1999 trial for felonious assault, possession of a firearm in the commission of a felony, and felon in possession of a firearm.
IV. Petitioner was denied due process of law, because the judge at his 1999 trial was not impartial.
V. Petitioner was forced to represent himself at trial and did not voluntarily waive his right to the effective assistance of counsel.
VI. Petitioner did not voluntarily waive his right to a jury trial.
On January 15, 1999, Petitioner was convicted of felonious assault, felon in possession of a firearm, and possession of a firearm in the commission of a felony. Petitioner appealed his convictions as of right raising the following issues:
I. Defendant did not, by his course of conduct, waive his constitutional right to the assistance of counsel at trial.
II. Defendant did not waive his constitutional right to a jury trial.
III. The trial judge erred in failing to recuse himself from hearing defendant's case, because the judge was not impartial.
IV. The trial court erred in denying defendant's motion to quash the information, where the information recited allegations identical to those contained in an information quashed by the same court in a previous action.
Petitioner's 1999 convictions were affirmed in an unpublished opinion. People v. Dixon, Michigan Court of Appeals Docket No. 217840 (September 15, 2000). The record does not demonstrate that Petitioner sought leave to appeal this decision in the Michigan Supreme Court. Consequently, Petitioner's convictions became final in state court fifty-six days after the date of the Michigan Court of Appeals decision, on November 10, 2000. M.C.R. 7.302(C)(3); Seeger v. Straub, 29 F. Supp.2d 385, 391 (E.D. Mich. 1998). Thus, Petitioner's 1999 state court convictions became final for purposes of the habeas corpus statute of limitations became final on November 10, 2000, and the limitations period began to run the next day. Petitioner filed the present petition on March 17, 2000, before the the limitations period began to run. Thus, the petition is not untimely.
Had Petitioner timely applied for leave to appeal in the Michigan Supreme court, at the conclusion of the Michigan Supreme court's review, Petitioner would have then had ninety more days added to the calculation of the running of the statute. This would allow for the filing of a petition for certiorari in the United States Supreme Court, thus concluding "direct review" of his criminal conviction. Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir. 2000); see also, Smith v. Bowersox, 159 F.3d 345, 347 (8th Cir. 1998); Cox v. Angelone, 997 F. Supp. 740, 744 (E.D.Va. 1998). However, Petitioner's failure to apply for leave to appeal in the Michigan Supreme court divested the United States Supreme Court of jurisdiction to grant or deny a writ of certiorari. See Flynt v. Ohio, 451 U.S. 619, 101 S.Ct. 1958, 68 L.Ed.2d 489 (1981) (Supreme Court's jurisdiction is generally limited to final judgment rendered by highest state court in which decision may be had); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969) (if issue not presented to highest state court such that it was necessarily decided by that court when affirming the conviction, the Supreme Court has no power to consider issue). Petitioner foreclosed this avenue by his failure to timely apply for leave to appeal in the Michigan Supreme Court.
The Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA") became law on April 24, 1996. For the first time, the AEDPA imposed a statute of limitations on petitions for writs of habeas corpus filed pursuant to 28 U.S.C. § 2254 and § 2255. Any petitions challenging non-capital state convictions or sentences must now generally be filed within one year from the date on which the judgment became final by conclusion of direct review, or the expiration of the time for seeking such review.
Exceptions to the one year limitations period may exist where the State created an impediment to filing the habeas petition, where the petition presents a constitutional right recognized and made retroactive by the Supreme Court, or where the petition presents a claim the factual basis of which was discovered after the direct review process was completed. 28 U.S.C. § 2244(d)(1). Further, the running of the one-year statute of limitation is tolled for the time period during which a properly filed application for post-conviction or other collateral review is pending in the state court. See 28 U.S.C. § 2244(d)(2).
III. Exhaustion of State Court Remedies
Respondent contends that Petitioner has failed to exhaust state court remedies as to some of his habeas claims. This Court agrees. While Petitioner has apparently served his sentence for his 1991 convictions and does not contend that he is serving a sentence which is consecutive to his 1991 sentence, he contends that one of his current convictions is illegal because of the unconstitutional nature of his 1991 convictions. Further, Petitioner contends that his sentencing as a habitual offender is improper because of the allegedly unconstitutional nature of his 1991 convictions. It is possible, therefore, that Petitioner may be able to challenge his 1991 convictions as underlying his conviction for felon in possession of a firearm, and/or his 1999 sentence as a habitual offender. See Smith v. Farley, 25 F.3d 1363, 131365-66 (7th Cir. 1994), cert. denied, 513 U.S. 1114 (1995) (holding that "[b]ecause a person currently serving a sentence that was enhanced on the basis of a prior conviction is still in custody, he may challenge the enhancing conviction as constitutionally invalid even though that prior conviction's original custodial term has expired."). See also, Turner v. United States, 183 F.3d 474, 477 (6th Cir. 1999).
However, Petitioner has not alleged that he has exhausted his state court remedies concerning his claims regarding the alleged constitutional errors afflicting his 1991 convictions. Petitioner also has not alleged that he presented the Michigan trial and appellate courts with the arguments set forth in the present case that the alleged illegality of his 1991 convictions render his 1999 conviction for felon in possession of a firearm and his 1999 habitual offender sentence illegal. Therefore, these claims have not been properly presented to the Michigan courts. Castille v. Peoples, 489 U.S. 346, 350-51 (1989). Further, Petitioner claims that he received ineffective assistance of counsel during his 1999 criminal proceedings. It also does not appear that Petitioner presented this claim to the Michigan trial and appellate courts.
A prisoner filing a petition for writ of habeas corpus under 28 U.S.C. § 2254 must first exhaust all state remedies. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). Exhaustion requires that a prisoner "fairly present" the substance of each federal constitutional claim to the state courts using citations to the United States 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). 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." O'Sullivan, 526 U.S. at 845; see also Rust, 17 F.3d at 160 (exhaustion requirement is satisfied when the state's highest court has been given a full and fair opportunity to rule on the petitioner's claims). A petitioner must present each ground to both appellate courts, even if the state's highest court only provides discretionary appellate review. O'Sullivan, 526 U.S. at 845-47; Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Moralez v. Thiede, 828 F. Supp. 494, 495 n. 1 (E.D. Mich. 1993). Generally, a federal district court should dismiss a petition for a writ of habeas corpus that contains any unexhausted claims. Rose v. Lundy, 455 U.S. 509, 510, 522 (1982); Rust, 17 F.3d at 160.
In this case, Petitioner has an available avenue for relief in the state court system such that his pursuit of state court remedies would not be futile. Petitioner may file a motion for relief from judgment with the trial court under M.C.R. 6.500 et seq. These claims were not presented in Petitioner's appeal of right, allegedly because of ineffective assistance of appellate counsel.
M.C.R. 6.500, Postappeal Relief, provides a procedure for postappeal proceedings challenging Michigan state criminal convictions. "It provides the exclusive means to challenge convictions in Michigan courts for a defendant who has had an appeal by right or leave, who has unsuccessfully sought leave to appeal, or who is unable to file an [late] application for leave to appeal in the Court of Appeals because 12 months have elapsed since the judgement. See M.C.R. 7.205(F)(3)." Staff Comment to M.C.R. 6.501, discussing the scope of Subchapter 6.500, Postappeal Relief. Consequently, a procedure is available to Petitioner under M.C.R. Subchapter 6.500 to present a motion for relief from judgment to the court in which he was convicted and sentenced. M.C.R. 6.502 and 6.503. The trial judge may appoint counsel, M.C.R. 6.505, and hold any evidentiary hearings necessary to develop the factual record required to adjudicate Petitioner's claims. M.C.R. 6.508.
An adverse decision on this motion may be appealed by leave of the court to the Michigan Court of Appeals within 12 months of the date of the trial court's decision on the motion, M.C.R. 6.509, and to the Michigan Supreme Court, if necessary. M.C.R. 7.302. Therefore, Petitioner has a mechanism available whereby he may present his unexhausted claims to the Michigan appellate courts.
Under these circumstances, this court finds that Petitioner's unexhausted claims should be addressed to, and considered by, the state courts in the first instance. Because this dismissal is without prejudice, Petitioner may re-file his habeas case after properly exhausting his state court remedies.
IV. Statute of Limitations Considerations
The effective date for the Anti-terrorism and Effective Death Penalty Act ("AEDPA") is April 24, 1996. The AEDPA applies to the habeas petition in this case because Petitioner filed his petition after the effective date of the AEDPA. Lindh v. Murphy, 521 U.S. 320 (1997).
Among other things, the AEDPA amended 28 U.S.C. § 2244 to include a new one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. Duarte v. Hershberger, 947 F. Supp. 146, 148 (D. N.J. 1996); Flowers v. Hanks, 941 F. Supp. 765, 769 (N.D.Ind. 1996). In most cases, a prisoner is required to file a federal habeas petition within one year of completing direct review of the habeas claims. See 28 U.S.C. § 2244(d)(1)(A).
28 U.S.C. § 2244(d) provides:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
Under 28 U.S.C. § 2254(d)(2), the limitations period is tolled when a properly filed application for State post-conviction or other collateral review is pending. A "properly filed application" for purposes of 28 U.S.C. § 2244(d)(2) is one submitted in accordance with a state's procedural requirements, such as the rules governing the time and place of filing. Lovasz v. Vaughn, 134 F.3d 146, 148 (3rd Cir. 1998). Assuming that an application is properly filed under the state court's procedural rules, it remains "pending" during the intervals between stages of the state court proceedings. See Hudson v. Jones, 35 F. Supp.2d 986, 988 (E.D. Mich. 1999) (limitations period tolled from AEDPA's effective date through Michigan Supreme Court's denial of leave to appeal, including interval between Michigan Court of Appeals' denial of application for leave to appeal and filing of application for leave to appeal with Michigan Supreme Court); Neal v. Ahitow, 8 F. Supp.2d 1117, 1119 (C.D.Ill. 1998) (concluding that "once a post-conviction relief petition is initially filed in State court then that petition is `pending' for purposes of section 2244(d)(2) as long as the state court for the state post-conviction procedures allow for review."). "Were this Court to find otherwise, it is conceivable that a person could be foreclosed from seeking federal habeas relief despite having complied with all of a state's procedural rules in the course of exhausting state court remedies." Matthews v. Abramajtys, 39 F. Supp. 871, 874 (E.D. Mich. 1999); accord, Rice v. Trippett, 63 F. Supp.2d 784, 786 (E.D. Mich. 1999). See also, Barnett v. Lemaster, 167 F.3d 1321, 131322 (10th Cir. 1999) (observing that construing "pending" to exclude the periods between stages of state appellate review of an application for post-conviction relief "could result in state prisoners forfeiting their right to federal habeas review while attempting to fully exhaust state court remedies.").
However, while a properly filed application for post-conviction relief tolls the statute of limitations, it does not reset or restart the statute of limitations once it has expired. The tolling provisions of 28 U.S.C. § 2244(d)(2) would not re-start or revive the one year limitations period if the one year limitations period has been fully used up. Nor will the tolling provisions re-set the limitations period back to a full year if part of the limitations period has been used up. Instead, this section merely excludes the time a properly filed post-conviction challenge is pending in the state courts from the calculation of the one year statute of limitations period. Cromwell v. Keane, 33 F. Supp.2d 282, 285 (S.D.N.Y. 1999); Gray v. Walters, 26 F. Supp.2d 771, 772 (D. Md. 1998). A contrary interpretation of § 2244(d)(2) would allow an inmate to avoid the effect of the AEDPA's one year statute of limitations through the device of bringing a belated state collateral attack. Smith v. McGinnis, 49 F. Supp.2d 102, 104 (E.D.N.Y. 1999). See also, Sorce v. Artuz, 73 F. Supp.2d 292, 297 (E.D.N.Y. 1999).
A state court postconviction motion, such as a motion for relief from judgment under M.C.R. 6.500, which is filed following the expiration of the limitations period cannot toll that period because there is no period remaining to be tolled. Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir. 2000).
Petitioner's state court convictions became final on November 10, 2000, fifty-six days after the Michigan Court of Appeals denied his appeal and he failed to timely seek leave to appeal in the Michigan Supreme Court. The habeas corpus one year statute of limitations began running on November 11, 2000. However, Petitioner filed his habeas petition on March 17, 2000, before his appeal had been decided by the Michigan Court of Appeals.
Respondent answered the petition on January 12, 2001, about ten months after Petitioner filed his petition.
A petition for a writ of habeas corpus should be dismissed without prejudice if state remedies are unexhausted as to any one of the petitioner's claims. Rose v. Lundy, 455 at 522. The rule from Rose v. Lundy is to be "strictly enforced." Strickland v. Washington, 466 U.S. 668, 684 (1984). However, as the United States Supreme Court has recently noted, Rose v. Lundy "contemplated that the prisoner could return to federal court after the requisite exhaustion." Slack v. McDaniel, 529 U.S. 473, 485-87 (2000). See 28 U.S.C. 2244(d). A habeas petition filed after a prior petition was dismissed for failure to exhaust state court remedies is not a second or successive habeas petition requiring authorization by the Court of Appeals under 28 U.S.C. § 2244(b)(3). Id.; Carlson v. Pitcher, 137 F.3d 416, 420 (6th Cir. 1998).
The present habeas petition was not untimely when it was filed on March 17, 2000. However, Respondent filed an answer to the petition about ten months later on January 12, 2001.
The federal courts are divided concerning whether the statute of limitations runs during the time a federal habeas petition is pending. See Jimenez v. Rice, 222 F.3d 1210, 1212-14 (9th Cir. 2000) (holding that a pending federal habeas corpus petition does not toll the habeas statute of limitations under § 2244(d)(2)) (collecting cases) and Sperling v. White, 30 F. Supp.2d 1246 (C.D. Cal. 1998). But see, Walker v. Artuz, 208 F.3d 357, 358-60 (2nd Cir. 2000) (holding that a pending federal habeas corpus petition tolls the habeas statute of limitations under § 2244(d)(2) (collecting cases), cert. granted in part, Duncan v. Walker, 121 S.Ct. 480 (2000) and Barrett v. Yearwood, 63 F. Supp.2d 1245 (E.D. Cal. 1999).
This question only matters where, as here, a habeas petition is pending for a time in federal court and is then dismissed for non-exhaustion or other reasons which allow a subsequent habeas petition to be filed at a later date.
The present petition was pending in federal court for about ten months before Respondent filed a responsive pleading. The United States Supreme Court has not yet determined whether a pending federal habeas petition tolls the statute of limitations. The petition was not untimely when it was filed. Therefore, this Court concludes that it would be unfair to dismiss the present petition for failure to exhaust state court remedies without taking steps to protect Petitioner's right to file a proper, exhausted habeas petition which would not be barred by the statute of limitations.
Nor has the Sixth Circuit Court of Appeals ruled on this issue as of the date of this order.
A habeas corpus petition may be stayed in unusual circumstances where it is imprudent to address the petition immediately. Post v. Gilmore, 111 F.3d 556, 557 (7th Cir. 1997). This Court shall "use a functional equivalent of staying this case until [Petitioner] has exhausted his state court claims" by ordering that 1) the petition shall be dismissed without prejudice because it is a mixed petition and 2) that, after exhausting state court remedies as to each and every federal constitutional claim which he wishes to present to the federal habeas court, Petitioner shall be allowed to reopen his habeas action "with the same docket number and with the benefit of the same filing date" as the present petition. Jones v. Berge, 101 F. Supp.2d 1145, 1152-53 (E.D. Wis. 2000). Further, this Court finds a matter of the law of the case that the time during which the present petition was pending in federal court does not count toward any computation of the time the statute of limitations period has run.
V. Conclusion
For the reasons given above, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE pursuant to Rose v. Lundy, but the court orders, pursuant to Fed.R.Civ.P. 58(1), that no judgment shall be entered. Petitioner may reopen this case after exhausting his state court remedies pursuant to 28 U.S.C. § 2254(c). Petitioner may amend his petition when the case is reopened. (This order does not limit Petitioner's right to amend his petition at other times).
IT IS FURTHER ORDERED that, if Petitioner chooses to reopen his federal habeas petition when his state court remedies are exhausted, he will be allowed to reopen his file under its present case number and with the benefit of the original filing date for statute of limitations purposes of March 17, 2000.
IT IS FURTHER ORDERED that Petitioner's motion for bail pending habeas review is DENIED.