Opinion
Case No. 04-CV-60202-AA.
May 25, 2005
OPINION AND ORDER OF SUMMARY DISMISSAL
Carnell M. McCreary, ("petitioner"), presently incarcerated at the Ionia Maximum Correctional Facility in Ionia, Michigan, has filed a pro se application for writ of habeas corpus with this Court pursuant to 28 U.S.C. § 2254, in which he challenges the propriety of a 2000 personal protection order which served as the basis for his aggravated stalking conviction. Respondent has filed a motion for summary judgment, claiming that the instant petition should be dismissed because petitioner has failed to exhaust his state court remedies. Petitioner has filed a response to the motion for summary judgment. For the reasons stated below, the instant petition is dismissed without prejudice.
I. Background
Petitioner was convicted in the Wayne County Circuit Court for aggravated stalking and being a fourth felony habitual offender. Petitioner's stalking conviction was based upon his violation of a personal protection order issued out of the Wayne County Circuit Court, Family Division in 2000. Petitioner's conviction was affirmed on appeal. People v. McCreary, 240822 (Mich.Ct.App. June 22, 2004); Iv. den. 472 Mich. 861; 692 N.W. 2d 385 (2004). Petitioner has now filed the instant application in which he seeks habeas relief on the following grounds:
I. The trial court abused its discretion in issuing the unconstitutional personal protection order, and failing to terminate the order, then denying petitioner access to the court to confront his accuser and to challenge the order.
II. The trial court and its clerk caused petitioner to default in his appeal to Michigan's higher courts and he must be allowed excusable neglect and to proceed on his claims or it will amount to a miscarriage of justice.
III. The issues of the personal protection order are not moot because the order has expired because the issues are still alive.
II. Discussion
Respondent has filed a motion for summary judgment, claiming that petitioner's claims are unexhausted because he never raised these claims in his direct appeal of his stalking conviction in the Michigan appellate courts. In response to the motion for summary judgment, petitioner contends that he sufficiently raised challenges to the propriety of the personal protection order in proceedings in the family court division of the Wayne County Circuit Court. More importantly, petitioner emphasizes in his response that he is not challenging his aggravated stalking conviction in his habeas petition, but the validity of the personal protection order issued by the Wayne County Circuit Court.Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Sanders v. Freeman, 221 F.3d 846, 851 (6th Cir. 2000) (quoting Fed.R.Civ.P. 56). To defeat a motion for summary judgment, the non-moving party must set forth specific facts sufficient to show that a reasonable factfinder could return a verdict in his favor. Id. The summary judgment rule applies to habeas proceedings. Redmond v. Jackson, 295 F. Supp. 2d 767, 770 (E.D. Mich. 2003).
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, 275-78 (1971). 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. Mohn v. Bock, 208 F. Supp. 2d 796, 800 (E.D. Mich. 2002). A habeas petitioner has the burden of proving that he or she has exhausted his or her state court remedies. Sitto v. Bock, 207 F. Supp. 2d 668, 675 (E.D. Mich. 2002).
Petitioner initially contends that he should not be subject to the exhaustion requirement because he claims that he is not challenging his aggravated stalking conviction but is merely seeking to have the personal protection order terminated. Petitioner's argument is disingenuous. Throughout his various pleadings, petitioner has made it clear that he is seeking to have this Court terminate or set aside the personal protection order in order to render his aggravated stalking conviction invalid. Petitioner is clearly attacking his criminal conviction in this case.
Petitioner also claims that he challenged the validity of the personal protection order in front of the family court judge who initially issued the order. Petitioner admits, however, that the Michigan Court of Appeals dismissed his appeal as being untimely because petitioner filed the appeal over twelve months after the family court had denied petitioner's motion to terminate the personal protection order. A claim is not exhausted unless the habeas petitioner provides the highest state court with a fair opportunity to pass upon the claim, which in turn requires that the applicant "Present his claims before the state courts in a procedurally proper manner according to the rules of the state courts." Mercadel v. Cain, 179 F. 3d 271, 275 (5th Cir. 1999) (internal quotation omitted). A habeas petitioner cannot circumvent the exhaustion requirement by failing to comply with state procedural rules. Coleman v. Mitchell, 244 F. 3d 533, 538 (6th Cir. 2001). Because petitioner's appeal was rejected as being untimely, petitioner has failed to show that he properly exhausted his claims with the state courts.
Petitioner has an available state court remedy with which to exhaust his claims. Petitioner could still exhaust his claims by filing a post-conviction motion for relief from judgment with the Wayne County Circuit Court under M.C.R. 6.502. Denial of a motion for relief from judgment is reviewable by the Michigan Court of Appeals and the Michigan Supreme Court upon the filling of an application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. See Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997).
Petitioner has failed to exhaust his state court remedies and still has an available state court remedy with which to do so. Although a district court has the discretion to stay a mixed habeas petition containing both exhausted and unexhausted claims to allow the petitioner to present his unexhausted claims to the state court in the first instance, See Rhines v. Weber, 125 S. Ct 1528 (2005), in this case, a stay of petitioner's application for a writ of habeas corpus would be inappropriate, because all of petitioner's claims are unexhausted and thus, the Court lacks jurisdiction over the petition while the petitioner pursues his claims in state court. See Hust v. Costello, 329 F. Supp. 2d 377, 380 (E.D.N.Y. 2004).