Opinion
Civil No. 99-CV-76350-DT
January 23, 2001
OPINION AND ORDER OF SUMMARY DISMISSAL
Dennis James Kincade, ("petitioner"), presently confined at the Macomb Regional Correctional Facility in New Haven, 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 first degree murder, M.C.L.A. 750.316; M.S.A. 28.548, and one count of felony-firearm. M.C.L.A. 750.227b; M.S.A. 28.424(2). For the reasons stated below, petitioner's application for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.
I. BACKGROUND
Petitioner's case has taken a long and circuitous path through the Michigan courts. Much of the procedural history of petitioner's case in the Michigan courts was summarized by the Michigan Court of Appeals in one of petitioner's appeals to that court:
The procedural history of this case is lengthy, but not complex. In 1985, after a jury trial in the Recorder's Court, defendant was convicted of first-degree murder and possession of a firearm during the commission of a felony. On August 20, 1985, he received the statutory sentence for each offense.
A claim of appeal was filed, and defendant's convictions were affirmed. People v. Kincade, 162 Mich. App. 80, 412 N.W.2d 252 (1987). No further appeal was sought.
On September 9, 1987, defendant, proceeding in propria persona, filed a motion in the lower court that he styled as one for a new trial. That motion was denied by an order dated September 14, 1987. A delayed application for leave to appeal from that order was filed in the Court of Appeals, which denied leave. Unpublished order of the Court of Appeals, decided November 22, 1988 (Docket No. 104129). The Supreme Court denied leave on May 31, 1989. 432 Mich. 909 (1989).
Subsequently, defendant again moved for a new trial in the Recorder's Court. From denial of that motion, defendant filed an application for leave to appeal in the Court of Appeals, which was denied. Unpublished order of the Court of Appeals, decided March 15, 1990 (Docket No. 121864).
However, our Supreme Court, in People v. Kincade, 436 Mich. 883; 461 N.W.2d 372 (1990), remanded the matter to the Recorder's Court with instructions "to provide a hearing on the defendant's claim that he should receive a new trial because he was denied effective assistance of counsel. MCR 7.302(F)(1)." Furthermore, the Court provided that "[o]n remand, if the defendant is indigent, the court is to appoint an attorney who has not previously represented the defendant."
Hearings were held on January 23 and 24 and April 26, 1991, for which attorney Kimberly Reed was appointed to represent defendant. On April 26, 1991, the trial court denied the motion for a new trial, ruling that defendant's claim of ineffective assistance of trial and appellate counsel had not been sustained.
Defendant filed a claim of appeal in the Court of Appeals, contending that the Recorder's Court decision was a "final judgment" appealable as of right. When defendant failed to respond to correspondence from the clerk's office of this Court, requesting a copy of the trial court's order and opinion as required by MCR 7.204(C)(1), this Court dismissed the appeal. Unpublished order of the Court of Appeals, decided on October 17, 1991 (Docket No. 140764).
Contemporaneously with defendant's filing of a claim of appeal in Docket No. 140764, defendant filed a complaint for superintending control. That complaint challenged the Recorder's Court's failure or refusal to provide defendant with appointed appellate counsel following the hearings and the alleged refusal of the Recorder's Court to provide defendant with transcripts of those hearings. This Court issued a peremptory order pursuant to MCR 7.206(D)(3), directing the Recorder's Court forthwith to provide defendant with a copy of its decision of April 26, 1991, and with a transcript of the proceedings on remand. The order further provided that, in all other respects, "the complaint for superintending control is denied for lack of merit in the grounds presented. MCR 7.205; Ross v. Moffitt, 417 U.S. 600; 94 S.Ct. 2437; 41 L.Ed.2d 341 (1974)." In re Kincade, unpublished order of the Court of Appeals, decided October 16, 1991 (Docket No. 141703).People v. Kincade, 206 Mich. App. 477, 479-481; 522 N.W.2d 880 (1994).
Petitioner subsequently filed a motion for the appointment of appellate counsel with the Recorder's Court. On July 1, 1995, appellate counsel was appointed to represent petitioner. On October 30, 1995, petitioner's appellate counsel, Kristina Larson Dunne, filed a delayed application for leave to appeal from the April 26, 1991 order of the Detroit Recorder's Court. On March 12, 1996, petitioner attempted to file a one hundred and fifteen page supplemental pro per appellate brief. In addition to raising several claims of ineffective assistance of counsel, the supplemental brief also sought to raise two issues which had not previously been raised in the trial court, namely, a claim that petitioner was denied due process of law and a fair trial when trial counsel was prevented from polling the jury, and a claim that he was deprived of due process and a fair trial because of the prosecutor's closing argument, which allegedly misstated the law concerning the defense of imperfect self-defense. The Michigan Court of Appeals denied petitioner's motion to file the supplemental brief, because it exceeded the fifty page limit for appellate briefs. People v. Kincade, 190068 (Mich.Ct.App. April 5, 1996). The Michigan Court of Appeals subsequently denied leave to appeal. People v. Kincade, 190068 (Mich.Ct.App. July 2, 1996).
Petitioner thereafter filed a motion for rehearing. The Michigan Court of Appeals granted the motion for rehearing and also granted petitioner leave to appeal. The order indicated that the appeal would be limited to the issues raised in the application and supporting brief. People v. Kincade, 190068 (Mich.Ct.App. October 15, 1996). The Michigan Court of Appeals ultimately affirmed the trial court's order of April 26, 1991, finding that petitioner had not been deprived of the effective assistance of trial or appellate counsel. The Court of Appeals did not address the two claims that petitioner attempted to raise in his supplemental brief which had been rejected. People v. Kincade, 190068 (Mich.Ct.App. November 21, 1997); lv. den. 459 Mich. 869; 586 N.W.2d 89 (1998). Petitioner now seeks the issuance of a writ of habeas corpus on the following grounds:
I. The trial court abused its discretion in denying a delayed application for a new trial where petitioner Kincade was deprived of his liberty without due process of law, the effective assistance of counsel, the right to a fair trial, and full and meaningful appellate review of his criminal convictions, by the deficient performances of both court-appointed trial and appellate counsel.
II. Petitioner Kincade was deprived of his liberty without due process of law, and his right to a fair trial, where the prosecution repeatedly misstated the law in closing argument to the jury, thereby effectively negating his claim of self-defense.
III. Petitioner Kincade was deprived of his liberty without due process of law, where the trial court effectively prevented the defense from individually polling the jurors following rendition of their verdicts.
Respondent contends that petitioner failed to properly exhaust his second and third claims with the state courts, because they were never raised in his appeal of right and petitioner failed to raise the two claims before the trial court in his postconviction motion for a new trial.
II. DISCUSSION
The petition must be dismissed because it contains two claims that have not been properly exhausted with the Michigan 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 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) (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; United States ex. rel. Drain v. Washington, 52 F. Supp.2d 856, 863 (N.D.Ill. 1999).
As an initial matter, it is unclear how petitioner's postconviction motion should be characterized. Although petitioner brought this as a motion for a new trial, the Michigan Court of Appeals subsequently indicated that the motion for a new trial was reviewable by them only as a motion for relief from judgment brought pursuant to M.C.R. 6.501, et. seq. People v. Kincade, 206 Mich. App. at 482. For purposes of determining whether petitioner has properly presented these two claims to the Michigan courts, this Court must therefore look at the procedures outlined under M.C.R. 6.501 et. seq. for the filing of postappeal or postconviction relief in Michigan.
M.C.R. 6.501 states that unless otherwise specified, a judgment of conviction and sentence entered by the circuit or Recorder's court that is not subject to appellate review under subchapters 7.200 or 7.300 may be reviewed only in accordance with the provisions of this subchapter. M.C.R. 6.503(A)(1) indicates that a defendant seeking relief under this subchapter must file a motion with the clerk of the court in which the defendant was convicted and sentenced. M.C.R. 6.504(A) states that the motion shall be presented to the judge to whom the case was assigned at the time of the defendant's conviction, if possible. See Washington v. Elo, 2000 WL 356353, *5 (E.D. Mich. February 29, 2000) (Rosen, J.). M.C.R. 6.509(A) states that appeals for decisions under this subchapter are by application for leave to appeal to the Michigan Court of Appeals.
The foregoing rules appear to indicate that any postappeal or postconviction motion for relief from judgment must initially be filed in the trial court where the defendant was convicted. Petitioner filed such a motion in this case. The question becomes whether his failure to include his second and third claims in his postappeal motion before the trial court precludes a finding of exhaustion on his part.
Unfortunately, there is not a great deal of Michigan case law on the subject. The limited case law appears to suggest that a defendant seeking postconviction relief in Michigan must first present the claim in the trial court in order to preserve the issue for appeal. In People v. Fannon, 444 Mich. 964; 514 N.W.2d 772 (1994), the Michigan Supreme Court denied the defendant leave to appeal the denial of his motion for relief from judgment. In so doing, the Michigan Supreme Court indicated that the denial was without prejudice to the defendant pursuing another motion for relief from judgment with the circuit court, because the circuit court was never presented with the affidavits and arguments made in the delayed application for leave to appeal that the defendant was entrapped, and that trial and appellate counsel was ineffective. The Supreme Court's order appears to suggest that any claims or arguments must first be presented to the trial court on a motion for relief from judgment before the Michigan appellate courts will consider the issue.
A number of cases have suggested that the failure to present an issue before a state trial court in a motion for postconviction relief precludes a finding that the issue has been exhausted for purposes of habeas review, even if that issue is later presented on appeal to the state's appellate courts from the denial of the postconviction motion. See Lindquist v. Gardner, 770 F.2d 876, 878 (9th Cir. 1985) (Idaho prisoner did not exhaust his state remedies by presenting his claim to the Idaho Supreme Court in an original habeas proceeding, where prisoner had a post-conviction remedy under the Uniform Post-Conviction Procedure Act which he should have pursued in the court in which he was convicted and sentenced); Drake v. Wyrick, 640 F.2d 912, 916 (8th Cir. 1981) (petitioner failed to exhaust claim, where he did not assert claim in his post-conviction motion, raising it for the first time on the appeal of the denial of his post-conviction motion); Geraci v. Senkowski, 23 F. Supp.2d 246, 265-266 (E.D.N.Y. 1999); aff'd, 211 F.3d 6 (2nd Cir. 2000); cert. den. 121 S.Ct. 581 (2000) (claim unexhausted where petitioner did not present claim in either of his two post-conviction motions, even though claim raised on appeal to the New York Court of Appeals); McLee v. Angelone, 967 F. Supp. 152, 154-155 (E.D. Va. 1997) (prisoner failed to exhaust claim that the Virginia Department of Corrections arbitrarily denied his parole eligibility, where although he raised the claim in his reply briefs to his state habeas petition, the claim was not included in his original or amended state habeas petition, and was not addressed by the Department of Corrections or the Virginia Supreme Court); Sanabria v. Morton, 934 F. Supp. 138, 140-141 (D.N.J. 1996) (insufficiency of evidence claim not exhausted when claim raised for the first time in a supplemental postconviction relief petition for certification to the state Supreme Court).
A review of these cases suggests that an issue raised in a state postconviction motion is not properly exhausted unless it is first raised in the petition or motion for postconviction relief before the state trial court. A claim is not exhausted unless the habeas petitioner provides the highest state court with a fair opportunity to pass upon the claim, which requires the applicant to present his or her claims before the state courts in a procedurally proper manner, according to the rules of the state courts. Mercadel v. Cain, 179 F.3d 271, 275 (5th Cir. 1999). Submission of a new claim to an appellate court is not a "fair presentation" of that claim, for purposes of determining whether a prisoner has exhausted his or her state remedies, where the first presentation of the claim occurs in a procedural context in which the claim's merits would not be considered. Castille v. Peoples, 489 U.S. 346, 351 (1989).
In the present case, petitioner's second and third claims were not presented before the trial court in his postconviction motion for a new trial. Although he attempted to add these issues in his supplemental pro per brief on appeal, the Michigan Court of Appeals denied petitioner's motion to file the supplemental brief and did not address these two claims in its opinion. The Court concludes that these two claims are not properly exhausted according to the postconviction remedies provided under Michigan law.
Petitioner has therefore failed to exhaust two out of the three issues contained in his petition for writ of habeas corpus. 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) (internal citations omitted). 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. A federal district court generally should dismiss a mixed habeas petition which contains both exhausted and unexhausted claims, leaving a petitioner with the choice of returning to the state court to exhaust his or her claims or amending and resubmitting the habeas petition to present only the exhausted claims to the district court. Matthews v. Abramajtys, 92 F. Supp.2d 615, 628 (E.D. Mich. 2000) (Tarnow, J).
This Court concludes that petitioner still has an available state post-conviction remedy available to him to properly exhaust these claims. Under M.C.R. 6.502(G)(1), a criminal defendant may file one motion for relief from judgment after August 1, 1995, notwithstanding the defendant's having filed one or more such motions before that date. People v. Ambrose, 459 Mich. 884; 587 N.W.2d 282 (1998). Because petitioner's prior postconviction motion was filed prior to August 1, 1995, he would still be permitted under Michigan law to file a postconviction motion for relief from judgment to exhaust these two claims. Petitioner has therefore failed to show that it would be futile for him to seek relief through a 6.500 motion. Dunbar v. Pitcher, 205 F.3d 1339, 2000 WL 179026, *1 (6th Cir. February 9, 2000). III. CONCLUSION
This Court further notes that the statute of limitations contained in 28 U.S.C. § 2244(d)(1) would be tolled pursuant to § 2244(d)(2) while this second motion for relief from judgment was pending before the Michigan courts. See Hudson v. Martin, 68 F. Supp.2d 798, 801 (E.D. Mich. 1999) (Tarnow, J.).
The Court concludes that petitioner did not exhaust state remedies for all his claims, and that he has an available state remedy. The Court DISMISSES the petition WITHOUT PREJUDICE to petitioner's right to renew his petition after presenting his claims as federal constitutional issues at all levels of state court review or to resubmit his habeas petition containing only the exhausted claims.