Opinion
Civil No. 01-CV-72798-DT
August 6, 2001
OPINION AND ORDER OF SUMMARY DISMISSAL
Arthur Porter, ("petitioner"), presently confined at the State Prison for Southern, Michigan in Jackson, 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 assault with intent to do great bodily harm less than Murder, M.C.L.A. 750.84; M.S.A. 28.279, and one count of felony-firearm, M.C.L.A. 750.227b; M.S.A. 28.424(2). 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 on March 12, 2001, following a trial in the Wayne County Circuit Court. By petitioner's own admission, he has not yet appealed this conviction to either the Michigan Court of Appeals or the Michigan Supreme Court, although the time for filing an appeal has not yet run. Petitioner, however, claims that a timely state appeal would not be an adequate or effective remedy, because it "may (or could)" take years for the appellate courts to decide his case. The instant petition was filed with this Court on July 18, 2001.
II. DISCUSSION
The instant petition must be dismissed, because petitioner has not yet 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, 275-278 (1971); Hannah v. Conley, 49 F.3d 1193, 1195 (6th Cir. 1995). 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 federal habeas petitioner has failed to exhaust his or her claims if he or she seeks to raise issues that have not been considered by the state court but for which state court remedies remain available. Hannah v. Conley, 49 F.3d at 1195. 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. Welch v. Burke, 49 F. Supp.2d at 998; Grant v. Rivers, 920 F. Supp. 769, 779 (E.D. Mich. 1996) (Gadola, J.). 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) (citing to Davis v. Campbell, 608 F.2d 317, 320 (8th Cir. 1979)).
In the present case, petitioner has not yet exhausted his state court remedies. Petitioner, however, argues that he should be excused from the exhaustion requirement, alleging that an appeal could or might take years to complete. Petitioner also argues that the trial court did not take his post-conviction motions "seriously or respectfully", although it is unclear whether he asserts that as a ground to excuse the further exhaustion of his claims in the Michigan appellate courts.
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 unneccesary. Doty v. Lund, 78 F. Supp.2d 898, 901 (N.D. Iowa 1999) (citing to Carmichael v. White, 163 F.3d 1044, 1045 (8th Cir. 1998)).
The inordinate delay in adjudicating state court claims may be a circumstance which would excuse the exhaustion of state court remedies, especially when the state is responsible for the delay. Workman v. Tate, 957 F.2d 1339, 1344 (6th Cir. 1992) (internal citations omitted). In the present case, however, petitioner has failed to show that there has been an inordinate delay in the processing of his state court appeal. The Tenth Circuit has held that there is a rebuttable presumption that the state appellate court process will be deemed ineffective if the state has been responsible for a delay of more than two years in adjudicating a habeas petitioner's direct criminal appeal. Harris v. Champion, 48 F.3d 1127, 1132 (10th Cir. 1995). Similarly, in Workman v. Tate, supra, the Sixth Circuit held that a habeas petitioner's failure to exhaust his state postconviction remedies would be excused where the petitioner's motion for post-conviction relief "languished" in the state courts for more than three years without the state court making a decision. Workman, 957 F.2d at 1344.
In the present case, by contrast, the judgment of conviction in this case was entered on March 12, 2001. Petitioner filed the instant application for habeas relief only four months later. This brief passage of time does not support a finding that the Michigan court's have unduly delayed the processing of petitioner's appeal. See e.g. Aldan v. Salas, 718 F.2d 889, 891 (9th Cir. 1983) (delay in appeal caused by delay of four to six months in convening the Appellate Division of the District Court of Guam not sufficient to allow U.S. District Court to consider the merits of habeas petition, where the petitioner had not exhausted his territorial court remedies). In the present case, it is unclear whether petitioner has even filed a claim of appeal with the Michigan Court of Appeals, although he claims that he mailed a form to "appellate services". However, the mere fact that petitioner may have an appeal pending in the state courts which could take several months to complete would not constitute an "inordinate delay" which would excuse the exhaustion requirement. See Whelan v. Noelle, 966 F. Supp. 992, 999 (D. Or. 1997).
Petitioner also contends that the state trial court did not take his post-conviction motions seriously or respectfully. To the extent that petitioner is arguing this as a basis to excuse the exhaustion requirement, his argument fails. First, petitioner still has an available state court remedy in terms of filing an appeal with the Michigan Court of Appeals and the Michigan Supreme Court. Secondly, 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. Ill. 1997). 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); cert. den. 121 S.Ct. 1366 (2001) ( 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 appellate courts 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 632, 634 (9th Cir. 1983); Szymanski v. Martin, 2000 WL 654916, * 2 (E.D. Mich. April 13, 2000) (Tarnow, J.).
III. CONCLUSION
The Court will dismiss the current habeas petition without prejudice, because petitioner has not yet exhausted his state court remedies. The Court will also deny petitioner a certificate of appealability. When a district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claims, a certificate of appealability should issue, and an appeal of the district court's order may be taken, if the petitioner shows that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 120 S.Ct. 1595, 1604 (2000). When a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petition should be allowed to proceed further. In such a circumstance, no appeal would be warranted. Id. A district court has the power to deny a certificate of appealability sua sponte. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).
In the present case, this Court has determined that petitioner has failed to exhaust his state court remedies. Where reasonable jurists could differ as to whether a habeas petitioner has exhausted his or her state court remedies, the grant of a certificate of appealability is appropriate. See Henry v. Department of Corrections, 197 F.3d 1361, 1366 (11th Cir. 1999). In the present case, reasonable jurists would not find it debatable as to whether petitioner has exhausted his state court remedies. Accordingly, a certificate of appealability shall not issue. The Court will also deny petitioner leave to appeal in forma pauperis, because the appeal would be frivolous. Hence v. Smith, 49 F. Supp.2d 547, 549 (E.D. Mich. 1999) (Gadola, J.).
IV. ORDER
Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED That a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that petitioner will be DENIED leave to appeal in forma pauperis.