Opinion
Case Number 99-10315-BC.
October 28, 2002
OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
The petitioner, Raymond J. Gallagher, filed this petition for writ of habeas corpus through counsel pursuant to 28 U.S.C. § 2254.
Because the claims raised are procedurally defaulted, and the petitioner has not demonstrated either cause for the default or actual innocence of the crimes for which he was convicted, the Court will dismiss the petition with prejudice.
I.
In 1986, a Recorder's Court jury in Detroit, Michigan convicted the petitioner of obtaining money under false pretenses, see Mich. Comp. Laws § 750.218, and receiving and concealing stolen property, see Mich. Comp. Laws § 750.535. The petitioner subsequently was convicted in absentia of being an habitual offender. See Mich. Comp. Laws § 769.12. The convictions arose from the petitioner's purchase of a stripped Cutlass Cierra from Budget Rent-A-Car on September 18, 1985. The trial court sentenced the petitioner as a four-time felony offender to a term of twenty-five to forty years in prison for the crimes.
The petition contains ten claims. The petitioner raised his first four habeas claims on direct appeal to the Michigan Court of Appeals, which affirmed his convictions and sentence in an unpublished per curiam opinion. See People v. Gallagher, No. 104333, at 1 (Mich.Ct.App. Jan. 24, 1991). The petitioner raised the same four claims in an application for leave to appeal in the Michigan Supreme Court. While his application was pending, he filed a motion for resentencing or relief from judgment in the trial court. He subsequently stipulated to the dismissal of his appeal in the supreme court so that the trial court could rule on his motion for resentencing. The supreme court dismissed the petitioner's appeal with prejudice. See People v. Gallagher, No. 91393 (Mich. Sept. 10, 1991). The trial court then denied the petitioner's motion for resentencing or relief from judgment, and the state appellate courts denied leave to appeal the trial court's decision. See People v. Gallagher, No. 146024 (Mich.Ct.App. Apr. 2, 1992); People v. Gallagher, No. 93736 (Mich. Sept. 28, 1992).
On or about June 14, 1996, the petitioner filed a motion for relief from judgment in which he alleged the fifth, sixth, seventh, eighth, and tenth claims contained in the habeas petition. The trial court denied the petitioner's motion because he had failed to show cause for not raising his claims on appeal or in a prior motion for relief from judgment. See People v. Gallagher, No. 86-669975 (Recorder's Ct. Aug. 2, 1996). The Michigan Court of Appeals and Michigan Supreme Court denied leave to appeal because the petitioner "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." People v. Gallagher, No. 198879 (Mich.Ct.App. June 18, 1997); People v. Gallagher, No. 110847 (Mich. July 28, 1998).
The present habeas petition was filed on July 28, 1999. The petitioner alleges that: (1) he was arraigned, tried and convicted in absentia; (2) he was denied his constitutional right to the assistance of counsel when the trial court disqualified retained counsel; (3) there was insufficient evidence presented at trial to convict him of larceny by false pretenses; (4) there was insufficient evidence presented at trial to convict him of receiving and concealing stolen property; (5) the jury instructions intimated that the prosecutor could establish proof beyond a reasonable doubt unless the petitioner created a substantial doubt of guilt; (6) he was denied effective assistance of trial counsel because substitute trial counsel was not informed of a plea and sentencing bargain; (7) his sentence constitutes cruel and unusual punishment; (8) he was denied due process when the state took contradictory positions on material facts; (9) his criminal prosecution, which followed a civil forfeiture proceeding, violated the Double Jeopardy Clause; and (10) his appellate attorney was ineffective because he advised the petitioner to dismiss his appeal to the Michigan Supreme Court in order to file a motion for relief from judgment. The respondent urges the Court to dismiss the habeas petition because the petitioner has not established entitlement to relief and because his claims are procedurally defaulted.
II. A.
The respondent contends that the petitioner's first, second, third, and fourth claims are procedurally barred due to the petitioner's failure to permit full consideration of them by the Michigan Supreme Court on direct appeal. The respondent also alleges that the ninth claim has never been presented to any court.
The doctrine of exhaustion of state remedies requires state prisoners to present their claims to the state courts before raising those claims in a federal habeas corpus petition. See 28 U.S.C. § 2254(b)(1)(A) and (c); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). "[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. Thus, state prisoners in Michigan must raise and permit adjudication of their claims by both the Michigan Court of Appeals and the Michigan Supreme Court before filing them in a habeas corpus petition. Mohn v. Bock, 208 F. Supp.2d 796, 800 (E.D.Mich. 2002).
The Court agrees that these claims were not exhausted. Although the petitioner did raise these claims before the Michigan Court of Appeals, he filed a motion to withdraw his appeal in the Michigan Supreme Court before his claims had been considered. Whatever the rationale for that decision, the petitioner failed to complete one full round of the Michigan state court appellate process for claims one through four. Furthermore, by not raising his ninth claim before any court, the petitioner again seeks to advance a claim that has not been exhausted.
But failure to exhaust bars review only when the state still provides a remedy to exhaust. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The petitioner no longer has an effective state remedy to exhaust because the deadline for appealing the court of appeals decision to the state supreme court has expired. See Mich. Ct. R. 7.302(C)(3) (requiring applications for leave to appeal in the Michigan Supreme Court to be filed within fifty-six days of the decision made by the Michigan Court of Appeals).
The petitioner cannot restart the appellate process by filing another post-conviction motion because the Michigan Court Rules prohibit filing second or successive motions for relief from judgment, see Mich. Ct. R. 6.502(G)(1), and he cannot satisfy either of the two exceptions to this rule, namely, a retroactive change in the law or newly discovered evidence. Mich. Ct. R. 6.502(G)(2).
Thus, the petitioner is barred from pursuing an otherwise available state court remedy, and his claims must be deemed exhausted. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Martin v. Mitchell, 280 F.3d 594, 603 (6th Cir. 2002) (citing Coleman v. Thompson, 501 U.S. 722, 750-51 (1991)).
B.
The evaporation of state procedural remedies over time will not completely excuse a prisoner's failure to avail himself of them, however. The Court may review a prisoner's procedurally defaulted claims on the merits only if he shows cause for not raising his claims at all levels of state court review and prejudice, or that he is actually innocent of the crimes for which he was convicted. Gray, 518 U.S. at 162; Hannah v. Conley, 49 F.3d 1193, 1195-96, 1196 n. 3 (6th Cir. 1995) (citing Coleman, 501 U.S. at 750-51, and Murray v. Carrier, 477 U.S. 478, 496 (1986)).
1.
To establish "cause," a petitioner must show that "some objective factor external to the defense impeded [his] efforts to comply with the State's procedural rule." Carrier, 477 U.S. at 488.
Objective impediments may include an unavailable claim, some interference by officials, and ineffective assistance of counsel. Id.
The petitioner has not alleged or attempted to demonstrate cause for failing to present his ninth claim to the state courts. He arguably attempts to "show cause" for failing to raise his first through fourth claims in the Michigan Supreme Court by alleging in his tenth claim that his appellate attorney advised him to voluntarily dismiss those claims. The tenth claim, however, is itself procedurally defaulted, and the petitioner has not shown cause and prejudice or a miscarriage of justice concerning that procedural default. Therefore, ineffective assistance of appellate counsel cannot serve as "cause" for the procedural default affecting the first, second, third, and fourth claims. See Mohn, 208 F. Supp.2d at 805 (quoting Edwards v. Carpenter, 529 U.S. 446, 452 (2000)); Seymour v. Walker, 224 F.3d 542, 550 (6th Cir. 2000).
The Court need not determine if the petitioner was prejudiced by the alleged violations of federal law because he has not shown cause for his noncompliance with a state procedural rule requiring claims to be raised on direct review. Smith v. Murray, 477 U.S. 527, 533 (1986); Engle v. Isaac, 456 U.S. 107, 134 n. 43 (1982). 2.
As noted above, a prisoner may overcome his procedurally defaulted claims, even in the absence of "cause and prejudice," by producing new and reliable evidence of actual innocence. Lott v. Coyle, 261 F.3d 594, 620 (6th Cir. 2001) (citing Schlup v. Delo, 513 U.S. 298, 314-15 (1995), and Herrera v. Collins, 506 U.S. 390, 417 (1993)), cert. denied, 122 S.Ct. 1106 (2002). "`[A]ctual innocence' means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623 (1998). "To be credible, [a claim of actual innocence] requires [the] petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324.
The petitioner has not supported his claims with new reliable evidence not presented at trial. Moreover, the Michigan Court of Appeals concluded in the appeal of right that the evidence presented at trial was sufficient to convict the petitioner on both charges. The Court therefore concludes that the actual innocence exception is not applicable here, and will not excuse the petitioner's procedural default of his first, second, third, fourth, ninth, and tenth claims.
B.
The respondent alleges that the petitioner's fifth, sixth, seventh, and eighth claims are similarly barred by procedural default. The petitioner did not raise these claims in his appeal of right, and it appears that the Michigan Court of Appeals and Michigan Supreme Court denied leave to appeal on collateral review because of that procedural default. Thus, the petitioner's procedural default appears to constitute an adequate and independent ground for denying him relief. See Simpson v. Jones, 238 F.3d 399, 407 (6th Cir. 2000).
The Michigan Supreme Court was the last state court to render a judgment on the petitioner's claims. It denied the petitioner's application for leave to appeal because the petitioner "failed to meet the burden of establishing entitlement to relief under MCR 6.508(D)." See People v. Gallagher, No. 110847 (Mich. July 28, 1998). Although the court did not specify the subsection of Rule 6.508(D) on which it was relying, the court's judgment presumably was based on Michigan Court Rule 6.508(D)(3). Furthermore, the trial court explicitly denied the petitioner's motion for relief from judgment pursuant to Rule 6.508(D)(3). This subsection states that relief from judgment may not be granted when a motion alleges grounds for relief, other than jurisdictional defects, that could have been raised on direct appeal. An exception may be made for prisoners who show "good cause" and "actual prejudice" or "a significant possibility that [they are] innocent."
The state court's reliance on Rule 6.508(D) was an adequate and independent state ground on which to base a judgment, particularly where the state trial court specifically invoked that procedural bar to deny relief. Simpson, 238 F.3d at 407 (affirming a finding default where the state trial court similarly based its denial of relief on the Rule's procedural bar). The state appellate courts' reference to Rule 6.508(D), effectively affirming the trial court's ruling, is sufficient for this Court to conclude that the ruling was based on a procedural default. Burroughs v. Makowski, 282 F.3d 410, 413-14 (6th Cir. 2002); Simpson, 238 F.3d at 407.
Therefore, the petitioner must show cause and prejudice, or actual innocence, for his state procedural default of not raising his claims during the first round of appeals. Coleman, 501 U.S. at 750.
The petitioner has provided no cause for failing to raise his fourth, fifth, sixth, seventh, and eighth claims on direct appeal. As previously discussed, his only possible "cause" for doing so, the ineffectiveness of his appellate attorney, is itself a defaulted claim not subject to review in this Court. See Mohn, 208 F. Supp.2d at 805. Once again, the Court need not determine whether prejudice exists because no cause was shown. See Smith, 477 U.S. at 533. Furthermore, the "actual innocence" exception does not apply here for reasons given above.
III.
The petitioner's claims are procedurally defaulted, and he has failed to demonstrate either cause for the default or new, reliable evidence of actual innocence.
Accordingly, it is ORDERED that the petition for writ of habeas corpus is DISMISSED.