Opinion
Case Number: 04-10077-BC
May 11, 2004
ORDER HOLDING PETITION FOR WRIT OF HABEAS IN ABEYANCE AND ADMINISTRATIVELY CLOSING CASE
The petitioner, Melvain Peacock, a state inmate currently incarcerated at the Bellamy Creek Correctional Facility in Ionia, Michigan, has filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that he is in custody in violation of his constitutional rights. He challenges his convictions for armed robbery, Mich. Comp. Laws § 750.89, felon in possession of a firearm, Mich. Comp. Laws § 750.224(f), and possession of a firearm in the commission of a felony (felony firearm), Mich. Comp. Laws § 750.227(b). Peacock raises two issues in the petition. Both claims were presented to the Michigan Court of Appeals. However, the petitioner acknowledges that his application for leave to appeal to the Michigan Supreme Court was returned to him by the Clerk because it was filed out of time. Peacock, however, may still raise these issues in a collateral proceeding in state court. The Court finds, therefore, that the petitioner has failed to exhaust his state court remedies and must return to state court to fully present his claims. The present petition will be held in abeyance provided that the petitioner promptly files an appropriate state court proceeding.
I.
The petitioner was convicted in the Wayne County Circuit Court of armed robbery, felon in possession of a firearm, and felony firearm following a jury trial that concluded on September 12, 2001. He was sentenced to a term of nine to twenty years on the robbery charge and a consecutive two-year term for felony firearm. The record does not disclose the sentence for the felon in possession conviction. The petitioner filed an appeal as a matter of right in the Michigan Court of Appeals, which affirmed his convictions. People v. Washington, No. 239727 (Mich.Ct.App. Sept. 11, 2003). The petitioner then attempted to file an application for leave to appeal in the Michigan Supreme Court, but the application was rejected because it was not filed within the applicable fifty-six day limitation period. See Petition at p. 2. On April 8, 2004, the petitioner then filed the pending petition in this Court, presenting the following claims:
I. Was Petitioner deprived of the effective assistance of defense counsel and his due process right to plead "not guilty" to the charged offenses when counsel erroneously argued that a defense witness testified that Petitioner had actually committed the robbery?
II. Was Petitioner deprived of the effective assistance of counsel when counsel failed to object when the trial court bolstered the credibility of the police, and by failing to object to the introduction of unresponsive and unfairly prejudicial testimony elicited from a state witness?
Peacock contends that he raised these issues in the state court of appeals.
II.
The doctrine of exhaustion of state remedies requires state prisoners to "fairly present" their claims as federal constitutional issues in the state courts before raising those claims in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) and (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the state's established appellate review process, including a petition for discretionary review to a state supreme court. O'Sullivan, 526 U.S. at 845. A claim is "fairly presented" to the state courts if it "(1) reliefs] upon federal cases employing constitutional analysis; (2) reliefs] upon state cases employing federal constitutional analysis; (3) phras[es] the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) allege [s] facts well within the mainstream of constitutional law." McMeans, 228 F.3d at 681. A Michigan petitioner must present each ground to both Michigan appellate courts. Mohn v. Bock, 208 F. Supp.2d 796, 800 (E.D. Mich. 2002); see also Hafley v. Sawders, 902 F.2d 480, 483 (6th Cir. 1990). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160.
Peacock acknowledges his failure to present his claims to the state supreme court. He offers reasons for his inability to mail his papers to the court on time, but that excuse does not absolve him of the requirement to exhaust remedies in state court if remedies are yet available to him. See Rust, 17 F.3d at 160 (holding that the failure to exhaust bars review only when the state still provides a remedy to exhaust).
Although the petitioner no longer has an effective state remedy to exhaust on direct appeal because the deadline for appealing the court of appeals decision to the state supreme court has expired, see Mich. Ct. R. 7.302(C)(3) (requiring applications for leave to appeal in the Michigan Supreme Court to be filed within fifty-six days of the decision made by the Michigan Court of Appeals), the Michigan Court Rules provide a process through which the petitioner may present his unexhausted claims. The petitioner can file a motion for relief from judgment pursuant to Mich. Ct. R. 6.500 et seq., which allows the trial court to appoint counsel, seek a response from the prosecutor, expand the record, permit oral argument, and conduct an evidentiary hearing on the petitioner's claims. The petitioner may appeal the trial court's disposition of his motion for relief from judgment to the Michigan Court of Appeals and Michigan Supreme Court. To obtain relief, he will have to show cause for failing to raise his unexhausted claim on direct review and resulting prejudice or a significant possibility of innocence. See Mich. Ct. R. 6.508(D)(3). However, he would have to make a similar showing here if the Court concluded that there was no state remedy to exhaust. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Hannah v. Conley, 49 F.3d 1193, 1195-96, 1196 n. 3 (6th Cir. 1995); Rust, 17 F.3d at 160. The petitioner's unexhausted claim should be addressed to, and considered by, the state courts in the first instance so the state court will have an opportunity to decide whether the external difficulty caused by the prison administration in timely mailing his appeal papers to the state supreme court constituted "cause" for his failure to comply with the state's filing procedure.
A federal district court has the authority to abate or dismiss a federal habeas action pending resolution of state post-conviction proceedings. Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). 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, Williams v. Vaughn, 3 F. Supp.2d 567, 576 (E.D. Pa. 1998); Parker v, Johnson, 988 F. Supp. 1474, 1476 (N.D. Ga. 1998), which the Court finds here.
In this case, the Court finds that a dismissal of the petition may render subsequent petitions in this court untimely. See 28 U.S.C. § 2244(d)(1). Although the petitioner filed his petition in this Court on April 8, 2004, the Supreme Court has held that the filing of a federal habeas corpus petition does not trigger 28 U.S.C. § 2244(d)(2) to suspend the running of the one-year statute of limitations. See Duncan v. Walker, 533 U.S. 167, 172 (2001). However, the Supreme Court's decision in Duncan did not preclude the district courts from "retaining] jurisdiction over a meritorious claim and stay[ing] proceedings pending the complete exhaustion of state remedies", or from "deeming the limitations period tolled for [a habeas] petition as a matter of equity." Id. at 182-83 (Stevens, J., concurring); see also Palmer v. Carlton, 276 F.3d 777, 780-81 (6th Cir. 2002) (implicitly adopting Justice Stevens' recommended course of action). Of these two options, the Sixth Circuit prefers that district courts follow the former procedure. Griffin v. Rodgers, 308 F.3d 647, 652 n. 1 (6th Cir. 2002).
In this case, the outright dismissal of the petition, albeit without prejudice, may preclude consideration of the petitioner's claims in this Court due to the expiration of the statute of limitations, 28 U.S.C. § 2241(d)(1). To avoid injustice, the Court will allow the petitioner to return to state court to seek relief and the Court will hold the present petition in abeyance, provided that the petitioner acts promptly. See Palmer, 276 F.3d at 781 (adopting the approach taken in Zarvela v. Artuz, 254 F.3d 374, 380-81 (2d Cir. 2001)). The petitioner must proceed in the state court within sixty days of this order. Failure to do so will result in the dismissal of this case without prejudice.
III.
Accordingly, it is ORDERED that the petitioner may file a motion for relief from judgment with the state trial court on or before July 11, 2004. If the petitioner fails to file a motion for relief from judgment by that date, the Court will dismiss the petition for writ of habeas corpus without prejudice.
If the petitioner files a motion for relief, he shall notify this Court that such motion papers have been filed in state court. The case shall then be held in abeyance pending the petitioner's exhaustion of the unexhausted issues. The petitioner shall file an amended petition in this Court within thirty days after the conclusion of the state court proceedings. If the petitioner files an amended petition, the respondent shall file an answer addressing the allegations in the petition in accordance with Rule 5 of the Rules Governing Section 2254 Cases in the United States District Courts within twenty-one days thereafter.
The Court warns the petitioner that the one-year statute of limitations will not be tolled unless his motion for relief from judgment is "properly filed," 28 U.S.C. § 2244(d)(2), and addresses "the pertinent judgment or claim[s]." Austin v. Mitchell, 200 F.3d 391, 394-95 (6th Cir. 1999). An application for post-conviction relief is "properly filed" within the meaning of 28 U.S.C. § 2244(d)(2) if it is submitted in accordance with the state's procedural requirements. Artuz v. Bennett, 531 U.S. 4, 8 (2000). These procedural requirements usually specify the form of the document, the time limits for delivery, the location for filing a post-conviction motion, and the filing fee. Ibid. The application for post-conviction relief presents a "pertinent judgment or claim" if it "present[s] a federally cognizable claim" that is also raised in the federal habeas petition. Austin, 200 F.3d at 394-95. If, and when, the petitioner returns to federal court with an amended habeas petition, following exhaustion of state remedies, he shall use the same caption and case number as appears on this order.
It is ORDERED that the petitioner's motion for an evidentiary hearing [dkt #5] is DENIED without prejudice.
It is further ORDERED that to avoid administrative difficulties the Clerk of Court close this case for statistical purposes only. Nothing in this order or in the related docket entry shall be considered a dismissal of this matter. Upon receipt of a motion to reinstate the habeas petition following exhaustion of state remedies, the Court may order the Clerk to reopen this case for statistical purposes.