Opinion
CASE NO. 03-CV-70713-DT
October 3, 2003
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE
I. Introduction
Petitioner Luis Angel Pesquera, a state prisoner currently confined at the Mound Correctional Facility in Detroit, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner was convicted of two counts of first-degree criminal sexual conduct and five counts of second-degree criminal sexual conduct following a jury trial in the Monroe County Circuit Court in 1996 and was sentenced as a second habitual offender to concurrent terms of life imprisonment of the first-degree convictions and to concurrent terms of 15 to 22 ½ years imprisonment on the second-degree convictions.
In his pleadings, Petitioner alleges: (1) a violation of his right of confrontation due to videotaped testimony, (2) improper use of expert and profile evidence, (3) prosecutorial error in using expert witness testimony, (4) non-harmless error, (5) improper admission of other acts evidence, (6) prosecutorial misconduct, (7) a violation of due process and equal rights due to videotaped depositions, (8) judicial error in instructing the jury, (9) denial of due process and fair trial by all issues and prosecutorial misconduct, (10) ineffective assistance of counsel, and (11) cumulative error.
This matter is before the Court on Respondent Andrew Jackson's motion to dismiss the petition for failure to fully exhaust state court remedies. For the reasons stated below, the Court grants Respondent's motion and dismisses the petition for a writ of habeas corpus without prejudice for failure to exhaust state court remedies.
II. Facts and Procedural History
Petitioner's convictions arise from his sexual abuse of five children, ages four to six, in the mobile home park where he resided in Monroe County, Michigan.
Following his convictions and sentencing, Petitioner filed an appeal as of right with the Michigan Court of Appeals asserting: (1) a denial of his confrontation rights, (2) improper use of expert and profile evidence, (3) erroneous admission of other acts evidence, and (4) prosecutorial misconduct. The Michigan Court of Appeals affirmed his convictions. See People v. Pesquera, 244 Mich. App. 305, 625 N.W.2d 407 (2001). Petitioner then filed a delayed application for leave to appeal with the Michigan Supreme Court, asserting the same claims as well as the following claims: (1) denial of due process and equal rights on all issues related to videotaped depositions, (2) judicial error in instructing the jury, (3) denial of due process and fair trial by all issues and prosecutorial misconduct, (4) ineffective assistance of counsel, and (5) cumulative error. The Michigan Supreme Court denied leave to appeal. People v. Pesquera, 466 Mich. 888, 646 N.W.2d 475 (2002).
Petitioner filed the present petition for a writ of habeas corpus on February 20, 2003, raising the same claims presented to the Michigan Supreme Court. Respondent filed the instant motion to dismiss on August 18, 2003, asserting that the petition should be dismissed for failure to exhaust state court remedies. Petitioner has not yet filed a response to that motion.
III. Analysis
A prisoner filing a petition for writ of habeas corpus under 28 U.S.C. § 2254 must first exhaust all state remedies. 28 U.S.C. § 2254(b), (c); O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); 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 petitioner must present each ground to both appellate courts. See 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.
A writ of habeas corpus is available to a person in custody pursuant to a state court judgment "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
In this case, the record reveals that Petitioner did not raise his last five habeas issues, Claims VII to XI, before the Michigan Court of Appeals. His subsequent inclusion of those claims in his application for leave to appeal to the Michigan Supreme Court does not satisfy the exhaustion requirement. See Castille v. Peoples, 489 U.S. 346, 349 (1989) (submission of claims to state's highest court on discretionary review does not constitute "fair presentation" when such review is granted only upon "special and important reasons"). Thus, Petitioner has failed to fully exhaust his state court remedies as to his habeas claims.
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, 522 (1982); see also Rust, 17 F.3d at 160. While 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, 1422 (6th Cir. 1987). A habeas petition may be denied on the merits, despite a petitioner's failure to exhaust state court remedies. 28 U.S.C. § 2254(b)(2).
In Rose, the Court also discussed the possible consequences of these choices. The plurality indicated that under 28 U.S.C. § 2254 Rule 9(b), "a prisoner who decides to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal [with prejudice] of subsequent federal petitions." Id. at 521 [O'Connor, J., with three justices concurring].
Petitioner has available avenues for relief in the state court system such that his pursuit of state court remedies would not be futile. For example, he may file a motion for relief from judgment with the trial court under Michigan Court Rule 6.500 et seq. raising the unexhausted claims. Moreover, Petitioner's claims concern matters of federal law which may warrant further review. Petitioner's unexhausted claims should therefore be addressed to, and considered by, the state courts in the first instance.
This Court does not express any opinion regarding the merits of Petitioner's unexhausted claims.
IV. Conclusion
For the reasons stated, the Court concludes that Petitioner has failed to fully exhaust state court remedies as to the claims contained in his habeas petition.
Accordingly,
IT IS ORDERED that Respondent's motion to dismiss is GRANTED and that the petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.
JUDGMENT
The above-entitled matter having come before the Court on a Petition for Writ of Habeas Corpus, Honorable Victoria A. Roberts, United States District Judge, presiding, and in accordance with the Opinion and Order entered on 3-OCT 2003 IT IS ORDERED AND ADJUDGED that the Petition for a Writ of Habeas Corpus is DISMISSED WITHOUT PREJUDICE.IT IS SO ORDERED.