Opinion
Case Number 03-10103-BC.
November 2, 2004
OPINION AND ORDER CONDITIONALLY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, HOLDING CASE IN ABEYANCE, AND ADMINISTRATIVELY CLOSING CASE
This matter is before the Court on the petitioner's motion to dismiss his own habeas corpus petition because he acknowledges that he has not exhausted his state court remedies as to all the grounds he wishes to raise here. The petition, filed on April 25, 2003, attacks the petitioner's state court convictions for armed robbery, Mich. Comp. Laws § 750.89, and possession of a firearm in the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227(b). Since the petitioner has failed to exhaust his state court remedies as to each of the grounds for relief he raises, he either must return to state court to fully present his claims or file an amended petition deleting the unexhausted claims. Therefore, the present petition will be held in abeyance provided that the petitioner promptly files an amended petition or an appropriate state court proceeding.
I.
On March 24, 1999, a circuit court jury in Wayne County, Michigan, found the petitioner guilty of five counts of armed robbery and one count of felony firearm. The trial court sentenced the petitioner to two years in prison for the felony firearm conviction, to be followed by concurrent terms of twenty to fifty years for each robbery conviction.
On direct appeal from his convictions in the state court of appeals, the petitioner argued that: (1) a juror ignored the trial court's instructions and discussed the case outside the courtroom; (2) the prosecutor committed misconduct during closing arguments, including commenting on the petitioner's silence and failure to explain the evidence; (3) the prosecution failed to exercise due diligence and present two important witnesses listed as res gestae witnesses; (4) his counsel failed to provide effective assistance, and the trial court abused its discretion by denying him an evidentiary hearing; (5) he was entitled to an evidentiary hearing on his claim of ineffective assistance of counsel; (6) the cumulative effect of the foregoing errors denied him a fair trial; and (7) he was entitled to be resentenced because the trial court administratively amended his sentence. The Michigan Court of Appeals affirmed petitioner's convictions and sentence in an unpublished per curiam opinion. See People v. Greene, No. 220095 (Mich.Ct.App. Sept. 25, 2001).
The petitioner then applied for leave to appeal in the Michigan Supreme Court. He raised the same claims that he presented to the state court of appeals, but he also alleged that he was entitled to a new trial on the ground of newly discovered evidence, namely the prosecutors knowing use of perjured testimony. The state supreme court denied leave to appeal because it was "not persuaded that the questions presented should be reviewed." People v. Greene, No. 120371 (Mich. Apr. 29, 2002).
The petitioner signed and dated his habeas corpus petition on April 14, 2003. The grounds for relief read as follows:
I. A manifest injustice has resulted where appellant Michael Greene was denied his right to a fair trial and impartial jury where a juror ignored the trial court's instructions and discussed the case outside the courtroom in violation of both the state and federal constitutions and the court refused to minimally grant an evidentiary hearing.
II. Appellant Michael Greene was denied his right to confrontation and a fair trial by the trial prosecutor's misconduct during his closing arguments in violation of the Due Process Clause of both the state and federal constitutions.
III. Appellant Michael Greene was denied his right to a fair trial and Fifth Amendment right to remain silent when the trial prosecutor improperly shifted the burden of proof.
IV. Appellant Michael Greene was denied his right to effective assistance of counsel guaranteed him by the federal and state constitutions.
V. The cumulative effects of the foregoing errors denied appellant Michael Greene of a fair trial and requires reversal.
VI. Appellant Michael Greene is entitled to a new trial on the ground of newly discovered evidence [resulting from the prosecution's use of perjured testimony] as set forth by the United States Supreme Court.
VII. Appellant Michael Greene is entitled to an evidentiary hearing on his claim of ineffective counsel resulting in an involuntary waiver of his right to testify pursuant to Gonzalez v. Elo, 972 F. Supp. 417 (E.D. Mich. 1997).
VIII. Appellant Michael Greene is entitled to be resentenced where the trial court administratively amended his invalid sentence in response to a letter from the Michigan Department of Corrections in violation of Due Process of law.
The respondent filed an answer to the petition in which he argues that the Court should dismiss the habeas petition as a "mixed petition" because it contains both exhausted and unexhausted claims. The petitioner concedes in his motion to dismiss that he did not exhaust state remedies for all his claims. He urges the Court to dismiss his habeas petition without prejudice.
II.
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.
The petitioner raised claims I, II, IV, V, VII, and VIII in the Michigan Court of Appeals and in the Michigan Supreme Court. The petitioner did not raise claim VI (newly discovered evidence of perjury) in the state court of appeals; he raised that claim for the first time in the state supreme court. The respondent argues as well that the petitioner did not raise his third claim, improper reference to the petitioner's silence, in the state court of appeals. However, the petitioner raised that issue in his state court appellate brief as part of his argument that the prosecutor committed misconduct during closing arguments. Nonetheless, because submission of a new claim to a state's highest court on discretionary review does not constitute fair presentation, see Castille v. Peoples, 489 U.S. 346, 351 (1989), the petitioner has failed to exhaust state remedies for his sixth claim.
The failure to exhaust state court remedies bars habeas review only when the state still provides a remedy to exhaust. Rust, 17 F.3d at 160. 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). However, he would have to make a similar showing here if the Court concluded that there was no state remedy to exhaust. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Hannah v. Conley, 49 F.3d 1193, 1195-96, 1196 n. 3 (6th Cir. 1995); Rust, 17 F.3d at 160.
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. In this case, the Court finds that a dismissal of the petition may render subsequent petitions in this court untimely. See 28 U.S.C. § 2244(d)(1). Although the petitioner filed his petition in this Court on April 25, 2004, the Supreme Court has held 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. See Duncan v. Walker, 533 U.S. 167, 172 (2001). However, the Supreme Court's decision in Duncan does not preclude the district courts from "retain[ing] jurisdiction over a meritorious claim and stay[ing] proceedings pending the complete exhaustion of state remedies," or from "deeming the limitations period tolled for [a habeas] petition as a matter of equity." Id. 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); Hargrove v. Brigano, 300 F.3d 717, 720-21 (6th Cir. 2002) (observing that "prospective tolling" of the statute of limitations is reasonable under such circumstances). Of these options, the Sixth Circuit prefers that district courts follow the former procedure. Griffin v. Rodgers, 308 F.3d 647, 652 n. 1 (6th Cir. 2002).
III.
Accordingly, it is ORDERED that the petitioner's motion to dismiss [dkt # 21] is DENIED.
It is further ORDERED that the petitioner may file an amended petition for writ of habeas corpus in this Court deleting the unexhausted claims or a motion for relief from judgment in the state trial court on or before December 2, 2004. If the petitioner fails to file an amended petition or a motion for relief from judgment by that date, the Court will dismiss the petition for writ of habeas corpus without prejudice.
If the petitioner files a motion for relief, he shall notify this Court that such motion papers have been filed in state court. The case shall then be held in abeyance pending the petitioner's exhaustion of the unexhausted issues. Thereafter, the petitioner shall file an amended petition in this Court within twenty-eight days after the conclusion of the state court proceedings. If the petitioner files an amended petition, the respondent shall file an answer addressing the allegations in the petition in accordance with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts within twenty-one days thereafter.
It is further ORDERED that to avoid administrative difficulties the Clerk of Court shall close this case for statistical purposes only. Nothing in this order or in the related docket entry shall be considered a dismissal of this matter. Upon receipt of an amended petition for writ of habeas corpus on or before December 2, 2004 or following exhaustion of state remedies, the Court may order the Clerk to reopen this case for statistical purposes.