Opinion
No. 02-70096
March 21, 2003
OPINION AND ORDER DENYING RESPONDENT'S MOTION FOR SUMMARY DISPOSITION AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE
I. Introduction
Petitioner Bobby L. Washington, a state inmate currently incarcerated at the Ross Correctional Institute in Chullicothe, Ohio, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is incarcerated pursuant to an unconstitutional conviction in Michigan state court. The Court finds that the petition was timely filed and shall therefore deny the Motion. The Court further finds that Petitioner's case is still pending in state court and shall, therefore, dismiss the matter without prejudice.
II. Procedural History
On February 21, 1997, Petitioner pleaded guilty in Genesee County Circuit Court to prison escape. On March 7, 1997, Petitioner was sentenced to one to five years imprisonment. Petitioner did not file an appeal in the Michigan Court of Appeals. See Affidavit of Sandra Schultz Mengel, filed June 14, 2002.
Petitioner filed a motion to correct sentence in the trial court on March 27, 1997. The docket sheet shows that the final court, to date, has not issued an Order deciding that motion. An April 14, 1997 docket entry indicates as follows: "Court determined Dept. of Corrections will apply credit if Deft is eligible to receive it." Genesee County Circuit Court docket entry # 50.
Petitioner filed the pending petition for a writ of habeas corpus on December 27, 2001. Respondent then filed a Motion for Summary Disposition and Dismissal of Petition for Habeas Corpus. Petitioner filed a response to the Motion for Summary Disposition on July 10, 2002.
III. Analysis
Respondent has filed a motion for summary disposition on the ground that the petition for a writ of habeas corpus is barred from review because it is untimely. The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA" or "the Act") applies to all habeas corpus petitions filed after the effective date of the Act, April 24, 1996. Petitioner's application for habeas corpus relief was filed after April 24, 1996. Therefore, the provisions of the AEDPA, including the limitations period for filing an application for habeas corpus relief, apply to petitioner's application. Lindh v. Murphy, 521 U.S. 320, 337 (1997).
Among other amendments, the AEDPA amended 28 U.S.C. § 2244 to include a one-year limitations period within which habeas petitions challenging state court judgments must be filed. A prisoner must file a federal habeas corpus petition within one year of the "date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A). Where a petitioner does not file a direct appeal, his judgment becomes final upon expiration of the time for seeking direct review. 28 U.S.C. § 2244(d)(1)(A). See Saylor v. Mack, 27 Fed. Appx. 321, 322 (6th Cir. 2001). The time during which a prisoner seeks collateral review of a conviction does not count toward the limitations period. See 28 U.S.C. § 2244(d)(2).
In the pending case, Petitioner did not file a direct appeal of his state court conviction. Pursuant to Michigan Court Rule 7.205(F)(3), a defendant is permitted twelve months from the entry of the judgment of conviction, in Petitioner's case March 10, 1997, to file an application for leave to appeal to the Michigan Court of Appeals. However, Michigan Court Rule 7.205(F)(4) also provides that M.C.R. 7.205(F)(3)'s 12-month limitations period:
does not apply to an application for leave to appeal by a criminal defendant if the defendant files an application for leave to appeal within 21 days after the trial court decides a motion . . . for resentencing, if the motion was filed within the 12-month period.
M.C.R. 7.205(F)(4).
Petitioner filed a motion to correct sentence in the trial court on March 27, 1997. The docket sheet shows that the trial court has not yet issued an Order deciding that motion. An April 14, 1997 docket entry indicates that the trial court determined that "Court determined Dept. of Corrections will apply credit if Deft is eligible to receive it." Genesee County Circuit Court docket entry # 50. The trial court's apparent deferral to the Michigan Department of Corrections to decide Petitioner's sentence is not a decision on the merits of the motion. Petitioner's time for filing an appeal in the Michigan Court of Appeals, therefore, has not yet commenced, and, his conviction is not yet final. Accordingly, § 2244's one-year limitations period also has not yet commenced. The petition therefore was timely filed.
While the petition is timely, the Court finds that it is unexhausted. A Michigan prisoner challenging his confinement by way of a habeas corpus petition in this Court must first exhaust all available remedies in the courts of the state wherein he was convicted. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). "Ordinarily, the state courts must have had the opportunity to pass on defendant's claims of constitutional violations." Prather v. Rees, 822 F.2d 1418 (6th Cir. 1987). The petitioner bears the burden of showing that state court remedies have been exhausted. Id. at 1420, n. 3.
The exhaustion requirement may be excused where there is no opportunity to obtain relief in state court, or if the process to do so is so deficient as to render futile any effort to obtain relief in state court. Duckworth v. Serrano, 454 U.S. 1, 3 (1981). An inordinate delay in adjudicating state court claims where the state is clearly responsible for the delay may excuse the exhaustion requirement. Workman v. Tate, 957 F.2d 1339, 1344 (6th Cir. 1992).
In this case, a delay of almost six years in deciding Petitioner's motion for resentencing is inordinate, and clearly attributable to the state. The Court, however, at this time declines to excuse the exhaustion requirement. The Court makes this finding based primarily upon the nature of the claims asserted in the habeas petition. Petitioner claims that the trial court erred in failing to credit him for jail time served while awaiting trial. The state court is in a better position than this Court to initially address this issue. Petitioner also asserts a non-specific due process violation. The Court construes Petitioner to be claiming that the state court's failure to address his motion for resentencing violated his rights under the Due Process Clause. The Court finds the delay to be, at a minimum, troubling. Again, the Court finds that the matter is best first addressed by the state courts.
The Court finds that the state courts provide a process through which Petitioner may seek to compel the trial court to rule upon his motion for resentencing. Michigan Court Rules 3.302 and 7.206 provide that a person may file a writ of superintending control in the Michigan Court of Appeals asking that court to order the trial court to rule upon his motion or resentencing.
Therefore, the Court shall dismiss the petition without prejudice so that Petitioner may seek a writ of superintending control in the Michigan Court of Appeals. If the trial court issues an order denying the motion for resentencing, Petitioner must then exhaust his state court remedies by filing appeals in the Michigan Court of Appeals and Michigan Supreme Court before returning to federal court. If, six-months from the date of this Opinion and Order, the state court has not yet ruled upon Petitioner's motion for resentencing, Petitioner may seek to reopen this habeas corpus proceeding and the Court will at that time re-examine whether the exhaustion requirement should be excused.
IV. Conclusion
For the foregoing reasons, IT IS ORDERED that the Respondent's Motion for Summary Disposition is DENIED. IT IS FURTHER ORDERED that the petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.