Opinion
Civil No. 02-CV-71517-DT
December 6, 2002
OPINION AND ORDER DENYING RESPONDENT'S MOTION TO DISMISS AND ORDERING AN ANSWER ADDRESSING THE MERITS OF THE HABEAS PETITION
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner challenged his 1998 state conviction for second degree criminal sexual conduct. Respondent has now filed a motion to dismiss on the grounds that the instant petition contains a claim that has not been exhausted with the state courts. Petitioner has filed a response to the motion to dismiss. For the reasons stated below, the motion to dismiss is DENIED. Respondent is further ordered to file an answer which addresses the merits of the habeas petition within thirty days of the Court's order.
I. Background
Petitioner was convicted of the above offense following a jury trial in the Ottawa County Circuit Court. Petitioner's conviction was affirmed on appeal. People v. Jurick, 215541 (Mich.Ct.App. August 22, 2000); lv. den. 464 Mich. 857; 630 N.W.2d 334 (2001); reconsideration denied 464 Mich. 857; 634 N.W.2d 354 (2001). Petitioner filed a petition for writ of habeas corpus with this Court on April 3, 2002, seeking the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his original petition, petitioner raised seven claims. On September 10, 2002, the Court granted petitioner's motion to amend the petition to add an eighth claim.
Respondent has now filed a motion to dismiss, contending that petitioner failed to exhaust the sixth claim that he raises in his habeas petition.
II. Discussion
As a general rule, a state prisoner seeking federal habeas relief must first exhaust his or her available state court remedies before raising a claim in federal court. 28 U.S.C. § 2254(b) and(c); Picard v. Connor, 404 U.S. 270, 275-278 (1971); Hannah v. Conley, 49 F.3d 1193, 1195 (6th Cir. 1995). Federal courts will not review a habeas corpus petition when a state prisoner has not first presented his or her claims to the state courts and exhausted all state court remedies available to him or to her. Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998). The Antiterrorism and Effective Death Penalty Act (AEDPA) preserves the traditional exhaustion requirement, which mandates dismissal of a habeas petition containing claims that a petitioner has a right to raise in the state courts but has failed to do so. Welch v. Burke, 49 F. Supp.2d 992, 998 (E.D.Mich. 1999). A prisoner confined pursuant to a Michigan conviction must raise each habeas issue in both the Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal habeas corpus relief. Id. The exhaustion requirement requires that a federal habeas petitioner fairly present the substance of each federal constitutional claim to 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); Matthews v. Abramajtys, 92 F. Supp.2d 615, 627 (E.D.Mich. 2000). As a general rule, a federal district court should dismiss a habeas petition that contains unexhausted claims. See Foster v. Withrow, 159 F. Supp.2d 629, 638 (E.D.Mich. 2001).
A habeas petitioner may not present a "mixed" petition containing both exhausted and unexhausted claims to a federal court. Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000). Although this requirement is not jurisdictional, a petition that includes unexhausted claims will ordinarily not be considered by a federal court absent exceptional or unusual circumstances. Rockwell, 217 F.3d at 423.
In his sixth claim, petitioner contends that he was denied a fair trial when the prosecution and police suppressed a surveillance tape from the men's locker room at Grand Valley State University, where the incident leading to the conviction took place, in violation of Brady v. Maryland, 373 U.S. 83 (1963). Petitioner contends that this evidence would be exculpatory, because it would show who the real perpetrator was. Respondent contends that this claim was not presented to the state courts. This Court disagrees.
Petitioner raised this Brady claim in a motion with the Michigan Court of Appeals to remand the matter to the trial court for an evidentiary hearing on the issue. The motion to remand was denied by the Michigan Court of Appeals. People v. Jurick, 215541 (Mich.Ct.App. February 24, 2000). The Sixth Circuit has held that raising a claim or issue in a motion to remand with the Michigan Court of Appeals is sufficient to present a claim to the Michigan Court of Appeals for the purpose of exhausting a claim for federal habeas review. See Elmore v. Foltz, 768 F.2d 773, 775 (6th Cir. 1985). The Court further notes that petitioner raised this claim under "Miscellaneous Issues" in his application for leave to appeal to the Michigan Supreme Court. It therefore appears that this issue has been properly exhausted with the state courts.
See Pro Per Brief and Application for Leave to Appeal, p. 94.
The Court will therefore deny the motion to dismiss and order the respondent to file an answer that responds to the merits of petitioner's habeas claims within thirty days of the Court's order. See Erwin v. Elo, 130 F. Supp.2d 887, 890-891 (E.D.Mich. 2001).
III.
IT IS HEREBY ORDERED that the motion to dismiss is DENIED. IT IS FURTHER ORDERED that respondent shall file an answer which addresses the merits of the petition within thirty days of the Court's order.