Opinion
Case No. 02-10088-BC
April 8, 2003
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND TRANSFERRING CASE TO COURT OF APPEALS AS SECOND PETITION
The petitioner, Russell Dunham, a state prisoner presently incarcerated at the Gus Harrison Correctional Facility in Adrian, Michigan, filed a petition and an amended petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court conviction for first-degree criminal sexual conduct and his sentence of twenty to thirty years. The habeas petition and its amendment allege five grounds for relief; three were raised and resolved in a habeas petition filed in the United States District Court for the Western District of Michigan, one ground attacks a procedural ruling in the previous habeas case, and the last claim concerns an issue that the petitioner attempted to add in the prior proceeding without success for failure to exhaust state remedies. Although the procedural posture of the previous habeas case is less than clear, the Court concludes that present matter constitutes a "second or subsequent petition" within the meaning of 28 U.S.C. § 2244(b)(3), over which this Court has no jurisdiction. The Court, therefore, will transfer the matter to the court of appeals so that the petitioner may seek permission to proceed.
I.
This case comes to this Court in a somewhat unusual procedural posture because of the disposition of the previous habeas proceeding in the Western District of Michigan. The petitioner's conviction of first-degree criminal sexual conduct, see Mich. Comp. Laws § 750.520(b)(1)(a), returned by a jury on August 5, 1994, arose from an incident that allegedly occurred in 1992. The victim in the case was the petitioner's step-daughter, and the incident came to light during a visitation dispute in a divorce proceeding between the petitioner and his former wife, the victim's mother, with whom the petitioner also had another child.
The facts of the case are recounted in an "Order of Dismissal for Lack of Exhaustion" filed by United States District Judge Wendell Miles, which is attached to this opinion and order as an appendix.
The Michigan Court of Appeals affirmed the petitioner's conviction and sentence in a published opinion. See People v. Dunham, 220 Mich. App. 268, 559 N.W.2d 360 (1996). On September 29, 1997, the Michigan Supreme Court denied leave to appeal. See People v. Dunham, 456 Mich. 873, 569 N.W.2d 164 (1997).
The petitioner subsequently filed a motion for relief from judgment. The motion was dated June 9, 1998, but was received and docketed in the trial court on August 17, 1998. The trial court denied the motion, and the Michigan Court of Appeals denied leave to appeal from the trial court's decision. See People v. Dunham, No. 218366 (Mich.Ct.App. Oct. 13, 1999). On April 25, 2000, the Michigan Supreme Court likewise denied leave to appeal. People v. Dunham, No. 115685 (Mich.Sup.Ct. Apr. 25, 2000).
Meanwhile, on November 20, 1998, the petitioner filed a habeas corpus petition in the United States District Court for the Western District of Michigan. He alleged that: (1) the prosecutor impermissibly employed the voir dire as an opening statement; (2) it was error to admit hearsay evidence under the "tender years exception" to the hearsay rule; (3) it was error to inferentially refer to the petitioner's exercise of his right to silence; (4) defense counsel was ineffective when he urged the petitioner to flee; (5) the trial court abused its discretion when it allowed the prosecutor to introduce evidence of absconding; (6) he was denied his right to a fair trial when the court refused the jurors' request to have testimony re-read to them; (7) he was not convicted by a unanimous jury because, when polled by the court, Juror Rouillard responded "uh-huh;" and (8) the prosecutor failed to correct the perjured testimony of witness Betty Dunham.
The magistrate judge assigned to the case determined that claim three was procedurally defaulted and that the other claims lacked merit. Accordingly, the magistrate judge recommended that the habeas petition be denied. The petitioner filed a lengthy objection to the magistrate judge's report and recommendation in which he intimated that he was raising two new claims. Judge Miles nevertheless adopted the magistrate judge's report and recommendation as his opinion and dismissed the petition on the merits. See Dunham v. McGinnis, No. 1:98-cv-869 (W.D.Mich. Sept. 28, 2000).
The petitioner appealed Judge Miles' decision to the United States Court of Appeals for the Sixth Circuit and at the same time also sought reconsideration in the district court. Before the district court could rule on the reconsideration motion, the court of appeals denied the petitioner's application for a certificate of appealability. See Dunham v. McGinnis, No. 00-2204 (6th Cir. Mar. 19, 2001).
Six months later, on September 20, 2001, Judge Miles turned again to the petitioner's reconsideration motion. Upon a more careful reading, he detected that motion included a request to amend the petition to raise two issues that he considered to have arguable merit, or at least were "troubling." Order of Dismissal for Lack of Exhaustion at 2. Judge Miles briefly discussed the petitioner's contentions that videotaped evidence of an interview between the child victim and a social worker had been suppressed in the state court, and that a psychiatric report prepared in connection with another matter involving petitioner suggested that the petitioner may not have been competent to stand trial in the criminal sexual conduct prosecution. Neither of these claims had been raised in the original habeas petition, and Judge Miles could find no evidence in the record before him that those claims were ever presented to the Michigan courts.
Judge Miles observed that he would be "inclined to grant petitioner leave to amend his petition," but observed that the petition would then contain both exhausted and unexhausted claims, thus subject to dismissal under Rose v. Lundy, 455 U.S. 509, 522 (1982). Id. at 10. The court then, after acknowledging that "the course of proceedings to date in this court has been somewhat unusual," dismissed the "matter" without prejudice for lack of exhaustion. Ibid.
The petitioner then proceeded in the state courts with his two new issues, and on March 22, 2002 he signed and dated the pending habeas corpus petition, which was filed in this Court on April 8, 2002. The petitioner alleges that: (1) the federal court in the Western District of Michigan neglected to rule on his request for leave to amend the first habeas petition; (2) the trial court erred in denying a request by the jury foreman to review certain testimony; (3) the trial court erred when it allowed the prosecutor to introduce evidence of absconding; and (4) he was deprived of due process by the use of Betty Dunham's perjured testimony. In an amended habeas corpus petition, the petitioner argues that the prosecution suppressed evidence favorable to the defense.
II.
At the surface, the September 20, 2001 order by the District Court for the Western District of Michigan might be viewed as a dismissal of an unadjudicated habeas petition that would not provided a basis to foreclose later consideration of a second petition under 28 U.S.C. § 2244(b)(3). The Supreme Court has held that "[a] habeas petition filed in the district court after an initial habeas petition was unadjudicated on its merits and dismissed for failure to exhaust state remedies is not a second or successive petition." Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Stated differently, "[a] petition filed after a mixed petition has been dismissed under Rose v. Lundy, before the district court adjudicated any claims is to be treated as `any other first petition' and is not a second or successive petition." Id. at 487.
However, eight of the claims raised in the original petition actually were adjudicated on the merits by the district court, and the court of appeals denied relief. Thereafter, the district court presumably intended to grant a request to add additional claims, although it never explicitly said so. A dismissal without prejudice would be consistent with such action, since the petition would become a "mixed petition." However, the district court never vacated its previous order adjudicating the merits of the claims in the original petition, and it is questionable that it had the authority to do so. The petition had already been denied, and then found wanting by the court of appeals. In those circumstances, a litigant could seek relief under Federal Rule of Civil Procedure 60(b), but motions under that rule themselves are considered "successive petitions" when filed after a judgment on the merits was already entered on a previous petition. See McQueen v. Scroggy, 99 F.3d 1302, 1335 (6th Cir. 1996). The district court has no jurisdiction to hear those motions absent permission from the court of appeals.
Moreover, there is no inconsistency in the district court's dismissal of the "matter" without prejudice, and its adjudication of the previous claims on the merits, since the exhaustion doctrine is not jurisdictional but rather is a rule of comity, and the court may adjudicate mixed petitions when the result is to deny habeas relief. See 28 U.S.C. § 2254(b)(2); Rockwell v. Yukins, 217 F.3d 421, 424 (6th Cir. 2000); Lyons v. Stovall, 188 F.3d 327, 333 (6th Cir. 1999).
When considering the entire matter, including all the claims presented to the District Court for the Western District of Michigan and the disposition of those claims, the conclusion is inescapable that the proceedings in that court constituted a prior habeas corpus matter in which at least some of the claims were adjudicated on the merits. The petition filed in this Court, therefore, must be viewed as a "second or subsequent petition" within the meaning of 28 U.S.C. § 2244(b)(3).
III.
The Court lacks jurisdiction to consider the present petition until the petitioner has received approval from the Court of Appeals to proceed pursuant to Section 2244(b)(3). When the petitioner files a second petition without first receiving permission from the Court of Appeals, the proper procedure is to transfer the petition to the Court of Appeals for want of jurisdiction pursuant to 28 U.S.C. § 1631. In re Sims, 111 F.3d 45, 47 (6th Cir. 1997).
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DENIED WITHOUT PREJUDICE for want of jurisdiction.
It is further ORDERED that the Clerk shall transfer the petition to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631.
It is further ORDERED that the petitioner's motion for appointment of counsel [dkt #11] is DENIED as moot.