Opinion
Case Number: 01-10099-BC
August 1, 2003
ORDER CONDITIONALLY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING LEAVE TO AMEND PETITION
The petitioner, Donald Lee, a state inmate currently incarcerated at the Kinross Correctional Facility in Kincheloe, Michigan, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that he is in custody in violation of his constitutional rights. He challenges his conviction for three counts of first-degree criminal sexual conduct, Mich. Comp. Laws § 750.520b(1)(a). He contends that his convictions are unconstitutional because his trial attorney was ineffective and the prosecutor engaged in misconduct. The Court finds that the petitioner has failed to exhaust his claim that his attorney was constitutionally ineffective for failing to object to the prosecutor's alleged misconduct. Although such "mixed" petitions are ordinarily subject to dismissal, to preserve the petitioner's right to litigate his claims in this forum, the Court will instead conditionally dismiss the unexhausted claim without prejudice, and permit the petitioner either to amend his petition to delete the unexhausted claim or present his ineffective assistance of counsel claim to the Michigan courts.
1.
The petitioner's convictions arise out of acts of sexual penetration perpetrated by him on his minor daughter. A jury trial was conducted in Washtenaw County Circuit Court. The jury found the petitioner guilty of three counts of first-degree criminal sexual conduct. On November 3, 1998, he was sentenced to three concurrent life sentences.
The petitioner filed an appeal of right in the Michigan Court of Appeals, presenting the following claims:
I. Under the circumstances of the case, was the admission of the Jackson, Michigan other acts evidence reversible error?
II. Was the evidence presented at trial insufficient to convict the appellant of first-degree criminal sexual conduct?
The Michigan Court of Appeals affirmed the petitioner's convictions. People v. Lee, No. 216244 (Mich.Ct.App. May 12, 2000). The petitioner then filed an application for leave to appeal in the Michigan Supreme Court, presenting the same claims presented to the Michigan Court of Appeals. The Michigan Supreme Court denied leave to appeal. People v. Lee, No. 116989 (Mich. Nov. 29, 2000).
Thereafter, the petitioner filed the pending petition for a writ of habeas corpus, presenting the following claim:
Petitioner was denied his Fifth, Sixth, and Fourteenth Amendment rights to a fair trial, effective assistance of counsel, and due process when the prosecutor deliberately injected improper and prejudicial other-acts evidence and defense counsel failed to lodge a contemporaneous objection.
2.
The respondent argues that the petition is subject to dismissal because the petitioner has failed to exhaust his state court remedies with respect to his ineffective assistance of counsel claim. A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 must first exhaust all state remedies. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) ("[S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process"); Rust v. Zent, 17 F.3d 155, 160 (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). "The exhaustion requirement is satisfied when the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on petitioner's claims." Rust, 17 F.3d at 160. 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 made a brief reference to his attorney's performance in the context of his prosecutorial misconduct claim in his brief on appeal to the Michigan Court of Appeals. However, this brief reference, which failed to assert a separate claim of ineffective assistance of counsel, was insufficient to "fairly present" that claim to the Michigan Court of Appeals. In addition, the petitioner failed to make even this minimal reference to his attorney's performance in his application for leave to appeal to the Michigan Supreme Court. Exhaustion of state court remedies requires a petitioner to present his claims to both state appellate courts. See Mohn, 208 F. Supp.2d at 800. The petitioner's ineffective assistance of counsel claim, therefore, is unexhausted.
Generally, a federal district court should dismiss a "mixed" petition for a writ of habeas corpus, that is, one 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. Although the exhaustion requirement is strictly enforced, it is not a jurisdictional prerequisite for bringing a habeas petition. Granberry v. Greer, 481 U.S. 129, 134-35 (1987); Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987). For example, an unexhausted claim may be addressed if pursuit of a state court remedy would be futile, Witzke v. Withrow, 702 F. Supp. 1338, 1348 (W.D.Mich. 1988), or if the unexhausted claim is meritless such that addressing it would be efficient and not offend federal-state comity. Prather v. Rees, 822 F.2d 1418, 1421 (6th Cir. 1987). A habeas petition may also be denied on the merits, despite the petitioner's failure to exhaust state court remedies. 28 U.S.C. § 2254(b)(2).
However, 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 M.C.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 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. The petitioner's unexhausted claim should be addressed to, and considered by, the state courts in the first instance.
A federal district court also has the authority to abate or dismiss a federal habeas action pending resolution of state post-conviction proceedings. Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). However, in order to stay federal proceedings and hold a habeas petition in abeyance pending resolution of state court proceedings, there must be exceptional or unusual circumstances, Williams v. Vaughn, 3 F. Supp.2d 567, 576 (E.D. Pa. 1998); Parker v. Johnson, 988 F. Supp. 1474, 1476 (N.D.Ga. 1998), which the Court finds here.
In this case, the Court finds that a dismissal of the petition will 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 March 6, 2001, 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 did 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). Of these two 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).
In this case, the outright dismissal of the petition, albeit without prejudice, may preclude consideration of the petitioner's claims in this Court due to the expiration of the statute of limitations, 28 U.S.C. § 2241(d)(1). To avoid injustice, the Court will allow the petitioner to choose either to amend his petition to delete the unexhausted claim, or return to state court to seek relief, in which case the Court will hold the present petition in abeyance. The petitioner must make this election, however, with dispatch. See Palmer, 276 F.3d at 781 (adopting the approach taken in Zarvela v. Artuz, 254 F.3d 374, 380-81 (2d Cir.), cert. denied, 534 U.S. 1015 (2001)).
3.
Accordingly, it is ORDERED that the petitioner may either file an amended petition with this Court omitting the unexhausted claim or a motion for relief from judgment with the state trial court on or before September 3, 2003. If the petitioner fails to file either an amended petition or motion for relief 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. The petitioner shall file an amended petition in this Court within thirty 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.
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]." Austin v. Mitchell, 200 F.3d 391, 394-95 (6th Cir. 1999), cert. denied, 530 U.S. 1210 (2000). 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. The application for post-conviction relief presents a "pertinent judgment or claim" if it "present[s] a federally cognizable claim" that is also raised in the federal habeas petition. Austin, 200 F.3d at 394-95. If, and when, the petitioner returns to federal court with an amended habeas petition, following exhaustion of state remedies, he shall use the same caption and case number as appears on this order.