-HWB Hemphill #458887 v. Curtin, No. 1:2010cv01051 - Document 6 (W.D. Mich. 2010)
Court Description: OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil)
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-HWB Hemphill &#035;458887 v. Curtin Doc. 6 UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION DANIEL LEE HEMPHILL, Petitioner, Case No. 1:10-cv-1051 v. Honorable Robert J. Jonker CINDI CURTIN, Respondent. ____________________________________/ OPINION This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court. Rule 4, RULES GOVERNING § 2254 CASES; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to screen out petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court will dismiss the amended petition without prejudice for failure to exhaust available state-court remedies. Dockets.Justia.com Discussion I. Factual allegations Plaintiff Daniel Lee Hemphill presently is incarcerated at the Oaks Correctional Facility. He currently is serving a prison term of 31 years and 3 months to 75 years, imposed by the Washtenaw County Circuit Court on August 13, 2008, after a jury convicted Plaintiff of seconddegree murder. Plaintiff appealed his conviction to the Michigan Court of Appeals, raising several grounds: (1) ineffective assistance of counsel, including sub-parts claiming that the counsel failed adequately to argue or object to four state-law errors; (2) abuse of trial court discretion in failing to grant a new trial, in admitting photographic evidence, in departing from the sentencing guidelines, and in denying a fair hearing on the admission of MICH . R. EVID . 404(b) evidence; (3) trial court error in admitting other-acts evidence under MICH . R. EVID . 404(b) and deprived Petitioner of a constitutionally fair trial by doing so; and (4) trial court error in the scoring of the sentencing guidelines. In an unpublished opinion issued April 13, 2010, the court of appeals affirmed the conviction and sentence. Petitioner sought leave to appeal to the Michigan Supreme Court, raising the same four issues. The supreme court denied leave to appeal on July 26, 2010. Petitioner filed his original habeas application and brief in support (docket ##1, 2) on or about October 20, 2010,1 and he filed an amended petition and a supplement (docket ##4, 5) on November 22, 2010. According to the supplement to his amended habeas application, Petitioner raises four grounds that are similar but not identical to those presented to and rejected by the state courts: (1) ineffective assistance of counsel, with four sub-parts claiming that the counsel failed 1 Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner dated his original application on October 20, 2010, and it was received by the Court on October 27, 2010. Thus, it must have been handed to prison officials for mailing at some time between October 20 and 27. For purposes of this opinion, the Court has given Petitioner the benefit of the earliest possible filing date. -2- adequately to argue or object to four errors that violated both state law and the federal constitution; (2) denial of due process in the trial court s commission of the various errors alleged in his second state-court claim; (3) denial of his Sixth and Fourteenth Amendment rights to confrontation and due process by the trial court s commission of the various errors alleged in his third state-court claim; and (4) denial of his Sixth and Fourteenth Amendment rights when he was sentenced on inaccurate information. II. Exhaustion of State Court Remedies Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to fairly present federal claims so that state courts have a fair opportunity to apply controlling legal principles to the facts bearing upon a petitioner s constitutional claim. See O Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77 (1971), cited in Duncan v. Henry, 513 U.S. 364, 365 (1995), and Anderson v. Harless, 459 U.S. 4, 6 (1982). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to all levels of the state appellate system, including the state s highest court. Duncan, 513 U.S. at 365-66; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). [S]tate prisoners must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State s established appellate review process. O Sullivan, 526 U.S. at 845. The district court can and must raise the exhaustion issue sua sponte when it clearly appears that habeas claims have not been presented to the state courts. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen, 424 F.2d at 138-39. -3- Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner alleges that he exhausted his claims by raising them in both the Michigan Court of Appeals and the Michigan Supreme Court. According to Petitioner s submissions, he raised an ineffective assistance of counsel claim at all levels of state-court review. As a result, to the extent that he argues that counsel was ineffective in failing to object or argue matters under state law, he has fully exhausted his first habeas ground. However, to the extent that Petitioner now argues that counsel was ineffective in failing to object or argue the same matters under federal constitutional principles, he has not fully exhausted his first habeas ground. In addition, Petitioner appears to have fairly presented a due-process claim regarding the admission of other-acts evidence. However, to the extent he now argues a Confrontation-Clause issue, Petitioner did not present his third habeas ground as a constitutional claim. As a result, he appears to have exhausted part of his third habeas ground. Further, Petitioner did not argue in the state courts that the multiple errors alleged in his third habeas ground violated the federal constitution. Moreover, Petitioner s fourth ground for habeas relief that his sentencing was improper was not argued in the state courts as a constitutional issue. To fairly present a claim, it is not enough that all the facts necessary to support a federal claim were before the state court or that a somewhat similar state law claim was made. See Anderson, 459 U.S. at 6; Harris v. Rees, 794 F.2d 1168, 1174 (6th Cir. 1986); see also Duncan, 513 U.S. at 366 (mere similarity of claims is insufficient to exhaust). If state courts are to be given the opportunity to correct alleged violations of prisoners federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution. Duncan, 513 U.S. at 365-66. Because Petitioner did not raise his claims in the state court under constitutional -4- principles, Petitioner s second, fourth, and part of his third habeas grounds are not properly exhausted. An applicant has not exhausted available state remedies if he has the right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). Petitioner has at least one available procedure by which to raise the issues he has presented in this application. He may file a motion for relief from judgment under MICH . CT . R. 6.500 et seq. Under Michigan law, one such motion may be filed after August 1, 1995. MICH . CT . R. 6.502(G)(1). Petitioner has not yet filed his one allotted motion. Therefore, the Court concludes that he has at least one available state remedy. Because Petitioner has some claims that are exhausted and some that are not, his petition is mixed. Under Rose v. Lundy, 455 U.S. 509, 22 (1982), district courts are directed to dismiss mixed petitions without prejudice in order to allow petitioners to return to state court to exhaust remedies. However, since the habeas statute was amended to impose a one-year statute of limitations on habeas claims, see 28 U.S.C. § 2244(d)(1), dismissal without prejudice often effectively precludes future federal habeas review. This is particularly true after the Supreme Court ruled in Duncan v. Walker, 533 U.S. 167, 181-82 (2001), that the limitations period is not tolled during the pendency of a federal habeas petition. As a result, the Sixth Circuit adopted a stay-andabeyance procedure to be applied to mixed petitions. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). In Palmer, the Sixth Circuit held that when the dismissal of a mixed petition could jeopardize the timeliness of a subsequent petition, the district court should dismiss only the unexhausted claims and stay further proceedings on the remaining portion until the petitioner has exhausted his claims in the state court. Id.; see also Rhines v. Weber, 544 U.S. 269, 277 (2007) (approving stay-and-abeyance procedure); Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002). -5- Petitioner s application is subject to the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1). Under § 2244(d)(1)(A), the one-year limitation period runs from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. Petitioner appealed his conviction to the Michigan Court of Appeals and Michigan Supreme Court. The Michigan Supreme Court denied his application on July 26, 2010. Petitioner did not petition for certiorari to the United States Supreme Court, though the ninety-day period in which he could have sought review in the United States Supreme Court is counted under § 2244(d)(1)(A). See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The ninety-day period expired on Monday, October 25, 2010. Accordingly, absent tolling, Petitioner would have one year, until October 25, 2011, in which to file his habeas petition. The Palmer Court has indicated that thirty days is a reasonable amount of time for a petitioner to file a motion for post-conviction relief in state court, and another thirty days is a reasonable amount of time for a petitioner to return to federal court after he has exhausted his statecourt remedies. Palmer, 276 F.3d at 721. See also Griffin, 308 F.3d at 653 (holding that sixty days amounts to mandatory period of equitable tolling under Palmer).2 Petitioner has more than sixty days remaining in his limitations period. Assuming that Petitioner diligently pursues his state-court remedies and promptly returns to this Court after the Michigan Supreme Court issues its decision, he is not in danger of running afoul of the statute of limitations. Therefore a stay of these proceedings is not warranted. Should Plaintiff decide not to pursue his unexhausted claims in the 2 The running of the statute of limitations is tolled while a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending. 28 U.S.C. § 2244(d)(2). -6- state courts, he may file a new petition raising only exhausted claims at any time before the expiration of the limitations period. Conclusion For the foregoing reasons, the Court will dismiss the amended petition for failure to exhaust available state-court remedies. Certificate of Appealability Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of appealability should be granted. A certificate should issue if Petitioner has demonstrated a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2). This Court s dismissal of Petitioner s action under Rule 4 of the Rules Governing § 2254 Cases is a determination that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that an issue merits review, when the Court already has determined that the action is so lacking in merit that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is somewhat anomalous for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under Rule 4 but granted certificate); Dory v. Comm r of Corr. of the State of New York, 865 F.2d 44, 46 (2d Cir. 1989) (it was intrinsically contradictory to grant a certificate when habeas action does not warrant service under Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would be inconsistent with a summary dismissal). The Sixth Circuit Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district -7- court must engage in a reasoned assessment of each claim to determine whether a certificate is warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of Petitioner s claims under the Slack standard. This Court denied Petitioner s application on the procedural ground of lack of exhaustion. Under Slack, 529 U.S. at 484, when a habeas petition is denied on procedural grounds, a certificate of appealability may issue only when the prisoner shows, at least, [1] that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and [2] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Both showings must be made to warrant the grant of a certificate. Id. The Court finds that reasonable jurists could not debate that this Court correctly dismissed the petition on the procedural ground of lack of exhaustion. Where 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 petitioner should be allowed to proceed further. Id. Therefore, the Court denies Petitioner a certificate of appealability. An Order and Judgment consistent with this Opinion will be entered. /s/ Robert J. Jonker ROBERT J. JONKER UNITED STATES DISTRICT JUDGE Dated: December 22, 2010 -8-
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