Opinion
Civil No. 03-74585-DT
November 24, 2003
OPINION AND ORDER OF SUMMARY DISMISSAL
Gary Alva Thatcher, ("petitioner"), presently confined at the Huron Valley Correctional Facility in Ypsilanti, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his conviction and sentence on four counts of first-degree criminal sexual conduct, M.C.L.A. 750.520b(1)(a). For the reasons stated below, the petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.
I. Background
Petitioner was convicted of the above offenses following a bench trial in the Eaton County Circuit Court. Petitioner's conviction was affirmed by the Michigan Court of Appeals. People v. Thatcher, 238361 (Mich.Ct.App. September 9, 2003). Petitioner's application for leave to appeal is currently pending in the Michigan Supreme Court.
II. Discussion
The instant petition for writ of habeas corpus must be dismissed without prejudice, because petitioner has not exhausted his state court remedies.
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, 275-78 (1971). The exhaustion requirement for habeas petitions is satisfied if a prisoner completes one round of the state's established appellate review process, including a petition for discretionary review with the state supreme court. O'Sullivan v. Boerckel, 526 U.S. 838, 839-40, 845 (1999). This means that 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). As a general rule, a federal district court should dismiss a habeas petition that contains unexhausted claims. Foster v. Withrow, 159 F. Supp.2d 629, 638 (E.D. Mich. 2001). The failure to exhaust state remedies may be raised sua sponte by a federal court. Benoit v. Bock, 237 F. Supp.2d 804, 806 (E.D. Mich. 2003); 28 U.S.C. § 2254(b)(3).
In the present case, petitioner has failed to exhaust his state court remedies, because his application for leave to appeal remains pending before the Michigan Supreme Court. When an appeal of a state criminal conviction is pending, a would-be habeas corpus petitioner must await the outcome of his appeal before his state remedies are exhausted. Sherwood v. Tomkins, 716 F.2d 632, 634 (9th Cir. 1983). Furthermore, a habeas petitioner must present his claim to the state's highest court in order to exhaust his state court remedies. Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). Petitioner has therefore failed to exhaust his state court remedies.
An exception to the exhaustion requirement exists only if there is no opportunity to obtain relief in the state courts or if the corrective process is so clearly deficient as to render futile any effort to obtain relief in the state courts. Duckworth v. Serrano, 454 U.S. 1, 3 (1981). A habeas petitioner, however, has the burden of showing that all available state court remedies have been exhausted or that exceptional circumstances exist which would make exhaustion unnecessary. Doty v. Lund, 78 F. Supp.2d 898, 901 (N.D. Iowa 1999).
In this case, petitioner appears to argue that he should be excused from having to exhaust his claims in the Michigan Supreme Court, because he believes that the Michigan Supreme Court will rule against him. The "futility to object" exception to the exhaustion requirement is not satisfied by a habeas petitioner's expectation that a state court will rule against him or her. United States ex. rel Centanni v. Washington, 951 F. Supp. 1355, 1365 (N.D. I11. 1997); See also Porter v. White, 2001 WL 902612, * 2 (E.D. Mich. August 6, 2001). In determining whether the futility exception to the exhaustion requirement applies, the "pertinent question" is not whether the state court would be inclined to rule in the habeas petitioner's favor, but whether there is any available state procedure for determining the merits of petitioner's claim. Spreitzer v. Schomig, 219 F.3d 639, 647 (7th Cir. 2000) ( quoting White v. Peters, 990 F.2d 338, 342 (7th Cir. 1993)). Because petitioner still has available state court remedies to raise his claims, he is not exempt from the exhaustion requirement.
Finally, this Court will dismiss the petition 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 moot. Sherwood v. Tomkins, 716 F.2d at 634; Szymanski v. Martin, 2000 WL 654916, * 2 (E.D. Mich. April 13, 2000).