Opinion
Case No. 04-10118-BC.
December 29, 2004
ORDER GRANTING MOTION TO DISMISS PETITION FOR WRIT OF HABEAS WITHOUT PREJUDICE
The petitioner, James Richard Getman, presently confined at the G. Robert Cotton Correctional Facility in Jackson, Michigan, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 that was accepted by this Court on May 18, 2004. Getman challenges his state court conviction for one count of second-degree criminal sexual conduct, Mich. Comp. Laws § 750.520c(1)(a). The respondent has filed an answer urging this Court to dismiss the petition for writ of habeas corpus because some of the claims in the petition have not been exhausted in the Michigan courts. In response to the respondent's answer, the petitioner has filed a motion to dismiss his petition without prejudice so that he can return to the state courts to exhaust these claims. The Court will grant the petitioner's motion.
Under 28 U.S.C. § 2244(d)(1)(A), a state prisoner must seek habeas corpus relief by filing a petition in an appropriate federal court within one year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." In this case, Getman was convicted in the Calhoun County, Michigan Circuit Court on July 29, 2003 based on his plea of nolo contendere. His application for leave to appeal was denied by the Michigan Court of Appeals on February 6, 2004. People v. Getman, 253033 (Mich.App., Feb. 6, 2004). Getman's application for leave to appeal to the Michigan Supreme Court was rejected by that court on April 7, 2004 because it was received beyond the fifty-six-day period for filing an application for leave to appeal allowed by the state rules. See Mich. Ct. R. 7.302(C)(3). Because the petitioner did not file a timely application for leave to appeal his conviction to the Michigan Supreme Court, his conviction became final for the purpose of Section 2244(d)(1)(A) on April 2, 2004 when the time for seeking leave to appeal in the Michigan Supreme Court expired. See Erwin v. Elo, 130 F. Supp. 2d 887, 889 (E.D. Mich. 2001). The petitioner has until April 2, 2005, therefore, to file a proper habeas corpus petition in this Court.
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, 842 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (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 claim is "fairly presented" to the state courts if it "(1) relie[s] upon federal cases employing constitutional analysis; (2) relie[s] upon state cases employing federal constitutional analysis; (3) phras[es] the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) allege[s] facts well within the mainstream of constitutional law." McMeans, 228 F.3d at 681. A Michigan petitioner must present each ground to both Michigan appellate courts. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
Here, Getman acknowledges that his petition contains claims that have not been exhausted through the state court system. Generally, a federal district court dismisses "mixed" petitions for a writ of habeas corpus, that is, those containing both exhausted and unexhausted claims, "leaving the prisoner with the choice of returning to state court to exhaust his claims or amending and resubmitting the habeas petition to present only exhausted claims to the district court." Rose v. Lundy, 455 U.S. 509, 510 (1982); see also Rust, 17 F.3d at 160. The petitioner in this case has elected to return to state court to exhaust his claims.
Although the petitioner no longer has an effective state remedy to exhaust on direct appeal, the Michigan Court Rules provide a process through which the petitioner may present his unexhausted claims. The petitioner can file a motion for relief from judgment pursuant to Mich. Ct. R. 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. To obtain relief, he will have to show cause for failing to raise his unexhausted claim on direct review and resulting prejudice or a significant possibility of innocence. See Mich. Ct. R. 6.508(D)(3).
At this point, however, the petitioner's one-year limitations period still must be measured from April 2, 2004. Filing his present habeas corpus petition in this Court did not stop the one-year limitations period from running. See Duncan v. Walker, 533 U.S. 167, 172 (2001) (holding that the filing of a federal habeas corpus petition does not trigger 28 U.S.C. § 2244(d)(2) to suspend the running of the one-year statute of limitations). If the petitioner properly files a post-conviction motion in state court, the one-year period will stop running temporarily. See 28 U.S.C. § 2244(d)(2). But filing such a motion will not reset the one-year clock. See Hargrove v. Brigano, 300 F.3d. 717, 718 n. 1 (6th Cir. 2002) (citing Searcy v. Carter, 246 F.3d 515, 519 (6th Cir.), cert denied, 534 U.S. 905 (2001)).
Under some circumstances, the Court could "retain jurisdiction over a meritorious claim and stay proceedings pending the complete exhaustion of state remedies." Duncan, 533 U.S. at 182-83 (Stevens, J., concurring). See also Palmer v. Carlton, 276 F. 3d 777, 780-81 (6th Cir. 2002) (implicitly adopting Justice Stevens' recommended course of action). However, the petitioner still has time to return to state court and thereafter file a new habeas corpus petition in this Court following a final decision on his state court post-conviction motion(s) before the balance remaining on his one-year period runs out. Moreover, a dismissal of this petition on the petitioner's motion will not trigger the "second or successive petition" prohibition found in 28 U.S.C. § 2244(b) since "a habeas petition filed after a previous petition has been dismissed [for failure to exhaust state remedies] is not a `second or successive' petition implicating the pre-filing requirement of obtaining an order of authority from the court of appeals." Carlson v. Pitcher, 137 F.3d 416, 420 (6th Cir. 1998).
Accordingly, it is ORDERED that the petitioner's motion to dismiss his petition for writ of habeas corpus without prejudice [dkt # 23] is GRANTED.
The Court warns the petitioner that the one-year statute of limitations will not be tolled unless his motion for relief from judgment is "properly filed," 28 U.S.C. § 2244(d)(2), and addresses "the pertinent judgment or claim[s]." See Cowherd v. Million, 380 F.3d 909, 914 (6th Cir. 2004) (en banc) (overruling Austin v. Mitchell, 200 F.3d 391, 394-95 (6th Cir. 1999)). An application for post-conviction relief is "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2) if it is submitted in accordance with the state's procedural requirements. Artuz v. Bennett, 531 U.S. 4, 8 (2000). These procedural requirements usually specify the form of the document, the time limits for delivery, the location for filing a post-conviction motion, and the filing fee. Id.
It is further ORDERED that the petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.