Opinion
Case No. 00-75564
July 23, 2001
OPINION AND ORDER GRANTING RESPONDENT'S MOTION TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS
I. Introduction
Petitioner Corey N. Martin, a state inmate currently incarcerated at the Mound Correctional Facility in Detroit, Michigan, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Now before the Court is Respondent's Motion to Dismiss Petition for Writ of Habeas Corpus for failure to exhaust state court remedies. For the reasons set forth below, the Court grants the motion to dismiss.
II. Procedural History
Following a jury trial in Wayne County Circuit Court, Petitioner was convicted of three counts of first degree criminal sexual conduct. On December 3, 1996, Petitioner was sentenced to twenty to sixty years imprisonment.
Petitioner filed an appeal of right in the Michigan Court of Appeals, claiming that the trial court erred in denying his motion for directed verdict and that there was insufficient evidence of penetration to support first degree criminal sexual conduct convictions. The Michigan Court of Appeals affirmed Petitioner's conviction. People v. Martin, No. 204966 (Mich.Ct.App. Dec. 8, 1996). Petitioner then filed a delayed application for leave to appeal to the Michigan Supreme Court. The Michigan Supreme Court denied leave to appeal. People v. Martin, No. 114356 (Mich. Nov. 30, 1999).
Thereafter, Petitioner filed a motion for resentencing in the trial court on the grounds that: (1) the sentencing ranges were incorrectly scored and factually bias; (2) ineffective assistance of counsel for failure to object to inaccurate information in the sentencing report; and (3) inaccurate sentencing report. The trial court denied the motion for resentencing. People v. Martin, 96-001224 (Wayne County Circuit Court Aug. 10, 2000).
Petitioner then filed a delayed application for leave to appeal the trial court's denial of his motion for resentencing in the Michigan Court of Appeals. The Michigan Court of Appeals denied leave to appeal. People v. Martin, No. 229550 (Mich.Ct.App. April 26, 2001).
Petitioner next filed a motion for rehearing of the denial of his application for leave to appeal. That motion is still pending in the Michigan Court of Appeals.
On November 22, 2000, Petitioner filed the pending petition for a writ of habeas corpus, presenting the following claims:
I. Insufficient evidence of penetration.
II. Inaccurate and inadequate time to review sentencing guideline scoring and presentencing investigation reports.
III. Ineffective assistance of counsel.
III. Analysis
Respondent argues that the petition should be dismissed, because Petitioner has failed to exhaust his state court remedies. The Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-32, 110 Stat. 1214, applies to all habeas corpus petitions filed after the effective date of the act, April 24, 1996. Because Petitioner's application was filed after April 24, 1996, the provisions of the AEDPA apply to this case. 28 U.S.C. § 2254, as amended by the AEDPA, provides, in pertinent part:
(b)(l) An application for a writ of habeas corpus . . . shall not be granted unless it appears that:
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.
Thus, a Michigan prisoner challenging his confinement by way of a habeas corpus petition in this Court must first exhaust all available remedies in the courts of the state wherein he was convicted. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998). State prisoners in Michigan must raise each claim in the Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal habeas corpus relief. See Manning v. Alexander, 912 F.2d 878, 881 (6th Cir. 1990). "Ordinarily, the state courts must have had the opportunity to pass on defendant's claims of constitutional violations." Prather v. Rees, 822 F.2d 1418 (6th Cir. 1987). If a petition contains both exhausted and unexhausted claims, it must be dismissed so that the petitioner can exhaust all claims before seeking federal habeas relief Rose v. Lundy, 455 U.S. 509 (1982); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
In the instant case, Petitioner's appeal from the trial court's denial of his motion for resentencing, in which he presents the same claims presented in the pending case, is still pending in state court. Therefore, Petitioner has failed to exhaust his state court remedies. Petitioner also has failed to show that the state process is unavailable or ineffective.
Accordingly, his petition is subject to dismissal pursuant to 28 U.S.C. § 2254. This dismissal is without prejudice to Petitioner's right to seek habeas corpus relief in this Court, pursuant to 28 U.S.C. § 2254, within the one-year limitations period established by the AEDPA, once he has exhausted his state court remedies with respect to all of the claims for which he seeks relief in this Court.
IV. Conclusion
For the foregoing reasons, the application for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE for failure to exhaust state court remedies.