Opinion
Civil No. 02-CV-74331-DT
July 30, 2003
OPINION AND ORDER OF SUMMARY DISMISSAL
James Edward Bane, ("Petitioner"), presently confined at the St. Louis Correctional Facility in St. Louis, 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 on one count of second-degree murder, M.C.L.A. 750.317; M.S.A. 28.549, one count of mutilation of a dead body, M.C.L.A. 750.160; M.S.A. 28.357, and one count of arson of personal property over the value of $50.00, M.C.L.A. 750.74; M.S.A. 28.269. 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 jury trial in the Roscommon County Circuit Court. Petitioner's conviction was affirmed on appeal. People v. Bane, 218586 (Mich.Ct.App. April 24, 2001); reh. den. 218586 (Mich.Ct.App. July 5, 2001); lv. den. 465 Mich. 959; 640 N.W.2d 875 (2002). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. Should this Federal habeas corpus court grant petitioner's writ of habeas corpus for new trial, where Michigan appeals opinion conclusion was "contrary to", and/or "unreasonable" to United States Supreme Court case laws to issue concerning jurors questions on the key issues of reasonable doubt and the state's theory, where trial court failed to give alternative instructions to jurors accordingly, thus denying Mr. Bane's constitutional right to a fair jury trial?
II. Should this Federal habeas corpus court grant petitioner's writ of habeas corpus where Mr. Bane's murder conviction in state court produced insufficient evidence that he caused Barbara Stout's death in the manner the jury was instructed and there-after state appeals courts, in review of the matter asserted in their opinion conclusions "contrary to" United States Federal Supreme Court law?
III. Should this Federal habeas corpus court grant petitioner's writ of habeas corpus for a new trial where Michigan appeals courts opinion conclusions were "contrary to" United States Supreme Court law where the accumulation of trial errors deprived Mr. Bane of his constitutional right to a fair trial?
II. Discussion
The instant petition must be dismissed without prejudice, because it contains a claim which has not been properly exhausted with the state courts.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). Federal courts will not review a habeas corpus petition when a state prisoner has not first presented his or her claims to the state courts and exhausted all state court remedies available to him or to her. Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998). 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). As a general rule, a federal district court should dismiss a habeas petition that contains unexhausted claims. See Foster v. Withrow, 159 F. Supp.2d 629, 638 (E.D. Mich. 2001).
In his first claim, Petitioner contends that the trial court erred in failing to give the jurors an alternative instruction on causation, namely, CJI 2d 16.15 Act of Defendant must be Cause of Death, after the jurors had questions about what evidence was required to find that petitioner caused the victim's death. The problem with Petitioner's claim is that he did not raise this claim on his direct appeal. Instead, Petitioner raised a claim (Claim IV before the Michigan Court of Appeals and the Michigan Supreme Court) that the trial court erred in failing to re-read the instruction concerning reasonable doubt (CJI 2d 3.2) and in failing to re-read the testimony of witnesses, when the jurors had submitted questions to the judge and had requested a readback of the testimony of certain witnesses. Petitioner did not claim in his direct appeal before the Michigan courts that the trial court erred in refusing to provide the jury with CJI 2d 16.15 in response to the jurors' questions.
The mere similarity of claims between the state appeals and the federal habeas petition is insufficient for exhaustion purposes. Duncan v. Henry, 513 U.S. 364, 366 (1995). The federal courts do not have jurisdiction to consider a claim in a habeas petition that was not fairly presented to the state courts, and a claim may be considered "fairly presented" only if the petitioner asserted both the factual and legal basis for his claim to the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000). The doctrine of exhaustion requires that the same claim under the same theory be presented to the state courts before it can be raised in a federal habeas petition. Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). Because Petitioner raised his jury instruction claim under a different legal and factual theory in the state courts, his claim was not properly presented to the state courts and is therefore unexhausted. See e.g. Grant v. Rivers, 920 F. Supp. 769, 779 (E.D. Mich. 1996).
This Court concludes that Claim #1 has not been exhausted with the state courts. A habeas petitioner may not present a "mixed" petition containing both exhausted and unexhausted claims to a federal court. Rockwell v. Yukins, 217 F.3d 421, 423 (6th Cir. 2000). Although this requirement is not jurisdictional, a petition that includes unexhausted claims will ordinarily not be considered by a federal court absent exceptional or unusual circumstances. Rockwell, 217 F.3d at 423. Moreover, with the AEDPA, Congress made it clear that the only circumstance in which mixed petitions may be considered by a district court is where the court determines that the petition must be dismissed in its entirety. Id. at 424.
Petitioner's method of properly exhausting this claim in the state courts would be through filing a motion for relief from judgment with the Roscommon County Circuit Court under M.C.R. 6.502. A trial court is authorized to appoint counsel for petitioner, seek a response from the prosecutor, expand the record, permit oral argument, and hold an evidentiary hearing. M.C.R. 6.505-6.507, 6.508(B) and (C). Denial of a motion for relief from judgment is reviewable by the Michigan Court of Appeals and the Michigan Supreme Court upon the filing of an application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203; M.C.R. 7.302. See Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997).
Moreover, to the extent that petitioner might wish to allege that his trial counsel was ineffective for failing to request that the jury be read CJI 2d 16.15, or that appellate counsel may have been ineffective for failing to raise this issue in his direct appeal, in order to excuse any potential default, petitioner would also have to exhaust the ineffective assistance of counsel issue as an independent Sixth Amendment claim with the Michigan courts before this Court could consider it either as an independent claim or as cause to excuse petitioner's potential default. See Mohn v. Bock, 208 F. Supp.2d 796, 805 (E.D. Mich. 2002).
The Court's only concern in dismissing the current petition involves the possibility that Petitioner might be prevented under the one year statute of limitations contained within 28 U.S.C. § 2244 (d)(1) from re-filing a petition for writ of habeas corpus following the exhaustion of these issues in the state courts. In the present case, the Michigan Supreme Court denied Petitioner leave to appeal from his appeal of right in the Michigan Court of Appeals on March 4, 2002. Petitioner's conviction would become final, for the purposes of the AEDPA's limitations period, on the date that the 90 day time period for seeking certiorari with the U.S. Supreme Court expired. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). Petitioner's judgment therefore became final on June 2, 2002, when he failed to file a petition for writ of certiorari with the U.S. Supreme Court. Thomas v. Straub, 10 F. Supp.2d 834, 835 (E.D. Mich. 1998). Petitioner had until June 3, 2003 to file his petition for writ of habeas corpus in compliance with the AEDPA's statute of limitations, unless the limitations period was somehow tolled.
In the present case, Petitioner filed his instant habeas petition on October 19, 2002, after one hundred and thirty nine days had already run on the one year statute of limitations. Although 28 U.S.C. § 2244 (d)(2) expressly provides that the time during which a properly filed application for state postconviction relief or other collateral review is pending shall not be counted towards the period of limitations contained in the statute, an application for federal habeas review is not "an application for state post-conviction or other review" within the meaning of 28 U.S.C. § 2244 (d)(2) that would toll the one year statute of limitations for habeas cases found in 28 U.S.C. § 2244 (d)(1). Duncan v. Walker, 121 So. Ct. 2120, 2129 (2001). Petitioner's current federal habeas petition is therefore not an application for post-conviction relief that would statutorily toll the one year limitations period for any subsequently filed habeas petition pursuant to § 2244(d)(2). However, this is not the end of the Court's inquiry. In Duncan, the U.S. Supreme Court indicated that its "sole task" in that case was "one of statutory construction" of the meaning of § 2244(d)(2). Id. 121 S.Ct. at 2129. In light of the facts before it, the U.S. Supreme Court declined to address whether a prior habeas petition could equitably toll the statute of limitations. Id.
Under the prison mailbox rule, this Court will assume that petitioner actually filed his habeas petition on October 19, 2002, the date that it was signed and dated, despite the existence of some evidence that it may have been filed later with this Court. See Neal v. Bock, 137 F. Supp.2d 879, 882, fn. 1 (E.D. Mich. 2001).
In his concurring opinion, however, Justice Stevens, joined by Justice Souter, concluded that neither the U.S. Supreme Court's "narrow holding" in Duncan nor anything in the text or the legislative history of the AEDPA would prevent a federal court from tolling the limitations period for a habeas petition as "a matter of equity." Duncan v. Walker, 121 S.Ct. at 2130. Justice Stevens reasoned that federal courts could conclude that "Congress simply overlooked the class of petitioners whose timely filed petitions remained pending in district court past the limitations period, only to be dismissed after the court belatedly realizes that one or more claims have not been exhausted." Id.
The one year limitations period under the AEDPA is considered a statute of limitations which is subject to equitable tolling, and is not a jurisdictional prerequisite which would bar review by the federal courts if not met. Dunlap v. United States, 250 F.3d 1001, 1004 (6th Cir. 2001). Another judge in this district has held that a habeas petitioner was entitled to the equitable tolling of the one year statute of limitations for the time that his first habeas petition was pending in federal court. Corbin v. Straub, 156 F. Supp.2d 833, 837 (E.D. Mich. 2001). The court found that the habeas petitioner's diligent pursuit of his rights, coupled with the "manifest injustice" that would result from penalizing the petitioner for attempting to comply with the exhaustion requirement, warranted equitable tolling of the limitations period during the pendency of his first habeas petition in federal court. Id. This Court, too, has previously held that a habeas petitioner was entitled to equitable tolling of the one year statute of limitations for the time that his first habeas petition was pending in the federal court before being dismissed without prejudice on exhaustion grounds. See Stoutmiles v. Jamrog, U.S.D.C. 01-CV-70178 (E.D. Mich. October 31, 2001). If the Court excludes the time that the current habeas petition has been pending in this Court, Petitioner would still have two hundred and twenty six days remaining to return to the state courts and exhaust his claim in a state post-conviction motion, before returning to the federal courts to seek federal habeas relief.
This Court concludes that Petitioner is entitled to the equitable tolling of the statute of limitations found in § 2244(d)(1) for any habeas petition that he may wish to file after properly exhausting his state court remedies for the period in which this first habeas petition has been pending in this Court. There is no indication that respondent would be prejudiced by tolling the limitations period for the time that this petition has been pending in the federal courts. To deny Petitioner equitable tolling of the limitations period would penalize him for attempting to properly exhaust claims that might be meritorious. Corbin v. Straub, 156 F. Supp.2d at 838. By equitably tolling the statute of limitations period for the time that this first petition has been pending, this Court will enable Petitioner to return to the state courts to allow him to exhaust his state court remedies, without penalizing him for doing so.
III. ORDER
IT IS HEREBY ORDERED that the petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.
JUDGMENT
This action having come before the Court on a Petition for Writ of Habeas Corpus, and the Court having entered an Opinion and Order dismissing the Petition for Writ of Habeas Corpus without prejudice,
Accordingly,
Judgment is entered in favor of Respondent and against Petitioner.