Opinion
Civil No. 02-CV-71391-DT
April 30, 2002
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE AND DENYING THE MOTION TO HOLD IN ABEYANCE
John Lee Moorer, ("Petitioner"), presently confined at the Riverside Correctional Facility in Ionia, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his Application, filed pro se, Petitioner challenges his conviction and sentence on one count of second degree murder, M.C.L.A. 750.3 17; M.S.A. 28.549, and one count of possession of a firearm in the commission of a felony, M.C.L.A. 750.227b; M.S.A. 28.424(2). Petitioner has also filed a Motion to hold the Petition in abeyance pending the exhaustion of the claims raised in this Petition with the Michigan courts on postconviction review. For the reasons stated below, Petitioner's Motion to hold the Petition for Writ of Habeas Corpus in abeyance is DENIED and the Application for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE.
I. Background
Petitioner was convicted of the above offenses following a jury trial in the Wayne County Circuit Court. Petitioner's direct appeals with the Michigan Courts ended when the Michigan Supreme Court denied Petitioner's Application for Leave to Appeal on August 31, 1999 following the denial of his appeal of right by the Michigan Court of Appeals. People v. Moorer, 461 Mich. 860; 601 N.W.2d 390 (1999). On August 28, 2000, Petitioner filed a postconviction Motion for Relief From Judgment with the Wayne County Circuit Court, which was denied. On January 4, 2002, the Michigan Court of Appeals denied Petitioner's Application for Leave to Appeal. People v. Moorer, 236218 (Mich.Ct.App. January 4, 2002). On February 12, 2002, Petitioner filed an Application for Leave to Appeal with the Michigan Supreme Court, which remains pending with that court. Petitioner has now filed an Application for Writ of Habeas Corpus with this Court, in which he seeks habeas relief on the following grounds:
I. Where Defendant is "actually" and "factually innocent" of the alleged crimes in which he has been convicted.
II. Trial Court/Court of Appeals refusal to grant Defendant's request for remand for an evidentiary hearing on his ineffective assistant (sic) of counsel claims, denied.
III. The Defendant was denied the effective assistant (sic) of appellate counsel on the appeal of right, in violation of U.S. Constitution, Six (sic) Amendment.
IV. On January 10, 2001, the Honorable Bruce U. Morrow, in the Third Judicial Circuit Court, denied the Motion [for Relief From Judgment] under M.C.R. 6.508(D)(3).
II. Discussion
The instant Application for Writ of Habeas Corpus is subject to summary dismissal, because Petitioner has not yet exhausted his state court remedies prior to filing the instant petition.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)(Cleland, J.). 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. Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990); Grant v. Rivers, 920 F. Supp. 769, 779 (E.D. Mich. 1996)(Gadola, J.). 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)(Roberts, J.) (internal citations omitted). The failure to exhaust state remedies may be raised sua sponte by a federal court. McCartney v. Vitek, 902 F.2d 616, 617 (8th Cir. 1990); Porter v. White, 2001 WL 902612, * 1 (E.D. Mich. August 6, 2001)(Rosen, J.).
In the present case, Petitioner has not yet exhausted his state court remedies, because his Application for Leave to Appeal the denial of his postconviction motion remains pending in the Michigan Supreme Court. Petitioner acknowledges that his case remains pending in the Michigan Supreme Court, but asks this Court to hold the instant petition in abeyance pending the completion of his proceedings in the Michigan Supreme Court. In support of his request to hold this matter in abeyance, Petitioner notes that the Michigan Supreme Court denied his Application for Leave to Appeal from his direct appeal on August 31, 1999. Petitioner filed his postconviction Motion for Relief From Judgment on August 28, 2000. Petitioner argues that holding the instant petition in abeyance pending the exhaustion of his claims in the Michigan Supreme Court is warranted because he only has three days remaining under the AEDPA's one year statute of limitations contained within 28 U.S.C. § 2244 (d)(1) to re-file his habeas petition following the denial of his Application for Leave to Appeal by the Michigan Supreme Court if this petition is dismissed without prejudice.
A federal district court has the authority to abate or dismiss a federal habeas action pending resolution of state postconviction proceedings. 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. Hudson v. Martin, 68 F. Supp.2d 798, 800 (E.D. Mich. 1999)(Tarnow, J.).
In the present case, Petitioner has failed to show any exceptional or unusual circumstances that would justify holding his Application for Writ of Habeas Corpus in abeyance, rather than dismissing it without prejudice. Petitioner's contention that he only has three days remaining under the AEDPA's one year statute of limitations is incorrect. Although the Michigan Supreme Court denied Petitioner's Application for Leave to Appeal from his appeal of right on August 31, 1999, the one year statute of limitations under 28 U.S.C. § 2244 (d)(1) did not begin to run on that day, as Petitioner claims. Where a state prisoner has sought direct review of his or her conviction in the state's highest court but does not file a petition for certiorari with the U.S. Supreme Court, the one year limitation period for seeking habeas review under 28 U.S.C. § 2244 (d)(1) begins to run not on the date that the state court entered judgment against the prisoner, but on the date that the 90 day time period for seeking certiorari with the U.S. Supreme Court expired. Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). Petitioner did not seek a petition for writ of certiorari in the U.S. Supreme Court following the denial of his Application for Leave to Appeal by the Michigan Supreme Court. Petitioner's judgment therefore became final not when the Michigan Supreme Court denied Petitioner leave to appeal on August 31, 1999, but on November 29, 1999, when he failed to file a petition for writ of certiorari with the U.S. Supreme Court. Grayson v. Grayson, 185 F. Supp.2d 747, 750 (E.D. Mich. 2002)(Roberts, J.). Petitioner therefore had one year from November 29, 1999, and not from August 31, 1999, to timely file a petition for writ of habeas corpus with this Court.
Petitioner filed his state postconviction Motion for Relief From Judgment on August 28, 2000, after two hundred and seventy three days had elapsed under the one year statute of limitations. The one year statute of limitations is tolled while Petitioner seeks postconviction relief with the state courts. 28 U.S.C. § 2244 (d)(2); Matthews v. Abramajtys, 39 F. Supp.2d 871, 874 (E.D. Mich. 1999)(Tamow, J.); Grayson, 185 F. Supp.2d at 750. Assuming that Petitioner's application for state postconviction relief was properly filed under Michigan's procedural rules, it would remain "pending" during the intervals between the stages of the state court proceedings. Erwin v. Elo, 130 F. Supp.2d 887, 890 (E.D. Mich. 2001)(Tamow, J.) (internal citations omitted). The tolling of the one year statute of limitations would not end until the Michigan Supreme Court completed collateral review by denying the Petitioner's Application for Leave to Appeal from the trial court's denial of his post conviction Motion for Relief from Judgment. Hudson v. Jones, 35 F. Supp.2d 986, 988-989 (E.D. Mich. 1999)(Cohn, J.). Assuming the Michigan Supreme Court were to deny the Application for Leave to Appeal, Petitioner would have ninety two days, or just over three months, remaining to re-file his petition with this Court following the exhaustion of his remedies in state court.
Because 28 U.S.C. § 2244 (d)(2) expressly provides that the AEDPA's one year statute of limitations is tolled during the pendency of a state postconviction motion, a motion for a stay of a federal habeas proceeding is not necessary or appropriate to preserve the federal forum for all of Petitioner's claims. Hudson v. Martin, 68 F. Supp.2d at 800 (citing to Healy v. DiPaolo, 981 F. Supp. 705, 708 (D. Mass. 1997)). The AEDPA therefore does not require a court to hold a habeas petition in abeyance pending the exhaustion of new claims in state court. Id. A federal court does not abuse its discretion in dismissing a habeas petition without prejudice, rather than holding it in abeyance, while petitioner's properly filed application for postconviction review is pending. Hudson v. Martin, 68 F. Supp.2d at 800; Brewer v. Johnson, 139 F.3d 491, 493 (Sth Cir. 1998). An indefinite, potentially lengthy stay is not authorized in the interests of judicial economy in a habeas case. Yong v. I.N.S., 208 F.3d 1116, 1120 (9th Cir. 2000).
Because the one year limitations period, or at least the unexpired portion of that period, is tolled during the pendency of Petitioner's state postconviction proceedings, Petitioner is unable to establish prejudice if his habeas petition was dismissed without prejudice during the pendency of his motion for postconviction relief. Therefore, a stay of the proceedings is not necessary or appropriate to preserve the federal forum for Petitioner's claims. See Schroeder v. Renico, 156 F. Supp.2d 838, 845-846 (E.D. Mich. 2001)(Lawson, J.). This Court will also dismiss the petition rather than hold it in abeyance because it is quite possible that the Michigan Supreme Court may grant Petitioner the relief that he is seeking, thus rendering the federal question presented in his Petition for Writ of Habeas Corpus moot. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983); Szymanski v. Martin, 2000 WL 654916, *2 (E.D. Mich. April 13, 2000)(Tamow, J.).
Although this Court will decline to hold the Petition in abeyance, the Court is aware of some of the difficulties that Petitioner has had with filing his state postconviction applications in the past and is also aware of the difficulties that pro se inmates in general have with filing their own legal pleadings with the courts. Petitioner has already filed his Application for Writ of Habeas Corpus, as well as several exhibits, with this Court. To reassemble these materials after the Michigan Supreme Court denies Petitioner Leave to Appeal might take Petitioner longer than ninety two days to accomplish, in light of the limited resources that are available to him as a prisoner. Therefore, to avoid Petitioner being prejudiced by the dismissal, the Court will allow Petitioner to retain the present case number and original filing date of the current habeas petition to foreclose the possibility that Petitioner would be time barred from seeking federal habeas relief after returning to the state courts to exhaust these remaining claims. See Kethley v. Berge, 14 F. Supp.2d 1077, 1078-1080 (E.D. Wis. 1998) (petitioner permitted to retain present case number and original filing date to avoid being barred under the AEDPA's statute of limitations from re-filing habeas petition after returning to the state courts to exhaust his state court remedies). This option would be "the functional equivalent of staying" the current habeas petition until Petitioner has had an opportunity to exhaust his remaining claims in the state courts. Dixon v. Burt, 2001 WL 561207, * 6 (E.D. Mich. April 20, 2001)(Roberts, J.); Jones v. Berge, 101 F. Supp.2d 1145, 1152 (E.D. Wis. 2000).
Petitioner shall therefore be allowed leave to file a motion for reinstatement of his habeas petition within 60 days after the issuance of a final decision from the Michigan Supreme Court. Woods v. Gilmore, 26 F. Supp.2d 1093, 1095 (C.D. Ill. 1998). If no such timely motion for reinstatement is filed by the end of the sixty day period following the Michigan Supreme Court's decision, the dismissal order previously entered in this case will become final on the next court date. Woods, 26 F. Supp.2d at 1095.
III. ORDER
IT IS HEREBY ORDERED that the Petition for Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE but the Court orders, pursuant to Fed.R.Civ.P. 58(1), that no judgment shall be entered. Petitioner may reopen his Application for Writ of Habeas Corpus after he has completed his state postconviction proceedings in the Michigan courts. Petitioner shall have sixty (60) days after the issuance of a final decision by the Michigan Supreme Court to move for his current habeas petition to be reinstated to the active docket.
IT IS FURTHER ORDERED that the Motion to Hold in Abeyance is DENIED.