Opinion
Case No. 01-CV-72688-DT
March 18, 2002
OPINION AND ORDER GRANTING RESPONDENT'S DISPOSITIVE MOTION AND DISMISSING THE HABEAS CORPUS PETITION
This matter is pending before the Court on Petitioner's pro se habeas corpus petition under 28 U.S.C. § 2254 and Respondent's motion for summary disposition and dismissal of the habeas petition. The Court has concluded for the following reasons that Respondent's motion must be granted and the habeas petition dismissed. A detailed procedural history follows to demonstrate that Petitioner did not exhaust state remedies for all his claims.
I. Background
In 1998, Petitioner entered a conditional plea of guilty to two counts of third-degree criminal sexual conduct. See MICH. COMP. LAWS § 750.520d. He reserved the right to appeal all pretrial issues. The trial court sentenced petitioner to concurrent terms of ten to fifteen years for each conviction.
Petitioner presented the following issues to the Michigan Court of Appeals through counsel:
I. The trial court erred in denying Defendant's motion to dismiss due to delay in arrest and reversal is required.
II. The trial court erred in denying Defendant's motion to dismiss based on a lack of speedy trial where there was a delay of over eighteen (18) months and Defendant was prejudiced by the delay and reversal is required.
III. The amendment to MCL 767.24 extending the statute of limitations only for sex offenses beyond six (6) years or to the arbitrary age of twenty-one (21) years is irrational and capricious and violates Defendant's right to equal protection of the laws and due process under the United States and Michigan Constitutions.
IV. The trial court erred in denying Defendant's motion to dismiss where the term of the multi-county grand jury expired before Defendant was indicted and reversal is required.
V. The trial court abused its discretion in imposing the maximum sentence possible often (10) to fifteen (15) years which was disproportionate to the offense and the offender and resentencing is required.
In a supplemental brief he argued that:
1. the trial court improperly denied his motion to quash the indictment on the ground that the indictment was unsigned;
2. the amendment to MCL 767.24 does not apply to the instant case because the charged offenses occurred before the amendment took effect;
3. he was denied the effective assistance of counsel at sentencing because counsel failed to object to the use of the 1988 sentencing guidelines;
4. the trial court should have quashed the indictment because the assistant prosecuting attorney improperly appeared before and injected prejudicial information in front of the multi-county grand jury;
5 the trial court abused its discretion by not commenting on Petitioner's family's letters during sentencing and by viewing certain victim impact letters; and
6. the Michigan Court of Appeals abused its discretion by denying his motion for the petition concerning the grand jury.
Petitioner moved to file another supplemental brief but the court of appeals denied his motion and returned the brief without filing it. See People v. Rouse, No. 216303 (Mich.Ct.App. June 30, 2000). The court of appeals subsequently affirmed Petitioner's convictions in an unpublished, per curtain opinion. See People v. Rouse, No. 216303 (Mich.Ct.App. Nov. 3, 2000).
Petitioner then filed three motions, seeking a rehearing, disqualification of the court of appeals panel, and permission to submit newly released grand jury documents. The court of appeals denied all three motions.
Next, Petitioner filed a pro se application for leave to appeal in the Michigan Supreme Court. He argued that:
I. The Court of Appeals committed clear error when it failed to provide a plenary decision for issue #4, which says the term of the grand jury ended on 8-28-94 and took testimony on Defendant-Appellant, for the first time, after the one year maximum period provided by the legislature. This violated the 5th and 14th Amend. US Const.
II. The Court of Appeals abused it's (sic) authority when it selected part of the same grand jury panel that ordered the grand jury to hear the criminal appeal, in effect, ruling on their own decision. This violated the 6th Amend. by taking away the right to appeal and due process of the 5th and 14th Amend. US Const.
III. The Court of Appeals abused it's (sic) discretion by not receiving and/or remanding the newly released grand jury log and the issue of the disqualified prosecutor to the trial court to develop the record. This violated the 5th and 14th Amend. US Const.
IV. Defendant-Appellant was denied effective appella[te] counsel. Because he is indigent and the state would not pay additional costs, the attorney failed to interview him before filing the brief did not request oral argument, did not file a motion for resentencing and dropped a conditional plea issue. This violated the 5th and 14th Amend.
V. The chief judge of the court of appeals abused his authority when he dismissed the motion to add grounds of the grand jury engaged in a `fishing expedition' without sending to a 3 judge panel. This violated the 6th Amend. and due process of the 5th and 14th Amend. US Const.
VI. The new statute of limitations (SOL) does not apply to the Defendant-Appellant for two reasons: there is no retroactive language that could apply to past offenses and he was not arraigned until 1998 (after both SOL expired). This violates the ex post facto clause, and the 4th Amend. via the 14th Amend. US Const.
The supreme court denied leave to appeal because it was "not persuaded that the questions presented should be reviewed . . . ." People v. Rouse, No. 118374 (Mich.Sup.Ct. May 29, 2001).
Petitioner signed and dated his habeas petition on June 29, 2001. The grounds for relief as stated in the accompanying brief read as follows:
I. The state courts violated Petitioner's Fourth Amendment right to be free from unreasonable seizures, via the Fourteen[th] Amendment, when they arrested him with an unlawful indictment. The grand jury's term was expired when it investigated and indicted him. The appeals court was not neutral and detached for the above issue. This is contrary to Monroe v. Pape, 81 SCT 473 (1961). Marshall v. Jerrico, 110 SCT 1610 (1980).
II. Both statute of limitations had expired before Petitioner was served with an arrest warrant and he has never been served with an information nor a lawful indictment, in violation of due process/ex post facto clause and contrary to Toussie v. US, 90 SCT 858 (1969) and Hassett v. Welch, 303 U.S. 303 (1938).
III. Petitioner's right to effective appellate counsel under the Sixth Amendment was violated when counsel (A) dropped oral arguments, (B) dropped an issue of the conditional plea, (C) filed the appeal without all the transcripts, (D) failed to interview client, (E) failed to submit newly released grand jury documents, and (F) did not request a new unbias[ed] appeals panel contrary to Anders v. California, 87 SCT 1396 (1967).
IV. Both Michigan courts abused their discretion when they failed to remand this case to the trial court to develop the record for the (A) newly released grand jury documents, (B) ineffective counsel claim, (C) issue of the disqualified prosecutor, and (D) denial of the grand jury petition/motion, violating the Sixth Amendment right to appeal and Williams v. Maryland, 83 SCT 194 (1963).
Respondent argues in his dispositive motion that Petitioner did not exhaust state remedies for all his claims. Petitioner replies that all his claims were raised in both state appellate courts.
II. Discussion A. The Exhaustion Doctrine
The doctrine of exhaustion of state remedies requires state prisoners to give the state courts an opportunity to act on their claims before presenting their claims in a federal habeas corpus petition. 28 U.S.C. § 2254(b)(1)(A) and (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The exhaustion requirement is satisfied if a prisoner invokes one complete round of the State's established appellate review process. O'Sullivan, 526 U.S. at 845. State prisoners in Michigan must present their habeas claims to the Michigan Court of Appeals and to the Michigan Supreme Court before raising their claims in federal court. Dombkowski v. Johnson, 488 F.2d 68, 70 (6th Cir. 1973). Submission of a new claim to a state's highest court on discretionary review does not constitute fair presentation, Castille v. Peoples, 489 U.S. 346, 351 (1989), and a habeas petition containing both exhausted and unexhausted claims must be dismissed. Rose v. Lundy, 455 U.S. 509, 522 (1982). B. Application of the Doctrine
Subsequent to the Supreme Court's decision in Rose, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (hereinafter "AEDPA"). See 28 U.S.C. § 2244 2254. The AEDPA maintained the requirement that a petitioner exhaust his or her state court remedies prior to filing a petition for a writ of habeas corpus. The AEDPA, however, altered the Supreme Court's holding in Rose; under the AEDPA, a federal court has the discretion to dismiss a claim on the merits despite the fact that it was not exhausted in state court. See 28 U.S.C. § 2254(b)(2). This Court chooses not to exercise such discretion in this case for two reasons: first, comity dictates that state courts should have an opportunity to correct their own errors; and second, by requiring a petitioner to totally exhaust his or her state court remedies will help to avoid piecemeal litigation, and will eventually lighten the burden on federal courts. See Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997); see also Duarte v. Hershberger, 947 F. Supp. 146, 149-50 (D.N.J. 1996).
The only issue that Petitioner fairly presented to the Michigan Court of Appeals is his claim that the grand jury's term expired before it investigated and indicted him (part 1 of Claim I). Petitioner asserts that he presented all his habeas claims in a motion for rehearing in the court of appeals. Raising issues in a petition for rehearing on appeal, however, does not constitute exhaustion of state remedies. Alcorn v. Smith, 724 F.2d 37, 40 (6th Cir. 1983) (citing Weigand v. Wingo, 380 F.2d 1022, 1023 (6th Cir. 1967)), vacated on other grounds, 471 U.S. 1096 (1985). To the extent that Petitioner presented his claims to the Michigan Court of Appeals in his second supplemental brief the claims are not exhausted because the court of appeals returned the brief and denied Petitioner's motion to file it.
Petitioner presented most, but not all, his claims in the Michigan Supreme Court. He failed to raise claims III.F., IV.B., and IV.D. in the Michigan Supreme Court. To summarize, the only issue raised in both the Michigan Court of Appeals and the Michigan Supreme Court is Petitioner's claim that the grand jury's term expired before it indicted him (part 1 of Claim I).
Petitioner still has an available state remedy to exhaust: a motion for relief from judgment under subchapter 6.500 of the Michigan Court Rules. If Petitioner is unsuccessful in the trial court, he may seek leave to appeal in the Michigan Court of Appeals and in the Michigan Supreme Court. Mich. Ct. R. 6.509(A), 7.203(B), and 7.302. He will have to show cause for failing to raise his unexhausted claims in the appeal of right and resulting prejudice or a significant possibility of innocence. See Mich. Ct. R. 6.508(D)(3). However, he would have to make a similar showing here if the Court had concluded that there was no state remedy to exhaust. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Hannah v. Conley, 49 F.3d 1193, 1195-96 1196 n. 3 (6th Cir. 1995); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).
III. Conclusion
Petitioner has not exhausted state remedies for all his claims, and he has an available state remedy to exhaust. Accordingly, the habeas petition is DISMISSED without prejudice to Petitioner's right to return to federal court with a timely motion for reinstatement, following exhaustion of state remedies. Rose v. Lundy, 455 U.S. at 510. Alternatively, Petitioner may amend his petition by deleting the unexhausted claims and then seek reinstatement on his exhausted claim (part 1 of Claim I). Id.
The Court warns Petitioner that the one-year statute of limitations is running on his claims, 28 U.S.C. § 2244(d), and the period of limitation is not tolled for the time during which this action has been pending in federal court. Duncan v. Walker, 533 U.S. 167 121 S.Ct. 2120, 2129 (2001). Furthermore, any post-conviction motion in state court must be "properly filed" for it to toll the period of limitation. 28 U.S.C. § 2244(d)(2). An application for postconviction relief is "properly filed" for purposes of § 2244(d)(2) "when its delivery and acceptance are in compliance with the applicable laws and rules governing filings." Artuz v. Bennett, 531 U.S. 4, 8 (2000).
Finally, Petitioner's motions for bond, for appointment of counsel, and for an evidentiary hearing are DENIED. These motions were attached to the habeas petition.