Opinion
Civil No. 01-CV-73240-DT
June 28, 2002
OPINION AND ORDER OF SUMMARY DISMISSAL
Don Gene Miller, ("petitioner"), presently confined at the Southern Michigan Correctional Facility in Jackson, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his application, filed though his attorney Thomas A. Bengston, petitioner challenges his conviction on one count of prisoner in possession of a weapon, M.C.L.A. 800.823(4); M.S.A. 28.1623(4), and being a fourth felony habitual offender, M.C.L.A. 769.12; M.S.A. 28.1084. Respondent has filed a motion to dismiss, claiming that petitioner has failed to exhaust all of the claims contained in his petition for habeas relief. Petitioner has filed a brief in opposition to the motion to dismiss, in which he asks this Court to dismiss the unexhausted claims and hold his exhausted claims in abeyance while he returns to the state courts to exhaust his remaining claims. For the reasons stated below, the petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.
I. BACKGROUND
Petitioner was convicted of the above offense by a jury in the Chippewa County Circuit Court on August 27, 1998. On October 7, 1998, petitioner was sentenced to twenty (20) to forty (40) years in prison. Petitioner's conviction was affirmed on appeal. People v. Miller, 215237 (Mich.Ct.App. May 30, 2000); Iv. den. 463 Mich. 920; 619 N.W.2d 547 (2000). On August 17, 2001, petitioner filed the instant application for writ of habeas corpus, raising the following grounds for relief:
I. Petitioner Miller was denied his right to due process under the Federal Constitution (U.S. Const. Amend. V) and was denied his right to a jury trial under the Federal Constitution (U.S. Const. Amend. VI)where inmate Jeffrey Adkins verbally communicated with juror Walter Kayden, during petitioner's trial, regarding petitioner's prior criminal record, which evidence the trial court had specifically excluded from the trial as unfairly prejudicial, causing improper external influence on the jury, but the state courts refused to require an evidentiary hearing to consider, and resolve, this issue of impeachment of jury verdict.
II. The state courts' determination that the criminal statute under which petitioner was charged and convicted, prohibiting a prisoner from possessing an implement or weapon, M.C.L.A. 800.823(4); M.S.A. 28.1623(4), was neither vague, nor overbroad, constituted an unreasonable application of federal law, and was contrary to federal law, as it existed in 1997-98.
III. Petitioner Miller was denied his right to due process under the Federal Constitution (U.S. Amend. V) by the action of the Eaton and Ingham County Prosecutors in prosecuting the matter against petitioner in Chippewa County, State of Michigan, which constituted selective prosecution, violated the terms of the plea bargain entered into decades earlier, and usurped the authority of the Michigan Parole Board and petitioner's right to be released after serving his term.
IV. Where the evidence failed to produce sufficient evidence at trial to sustain a jury verdict, finding petitioner guilty beyond a reasonable doubt of the criminal offense of prisoner in possession of an implement or weapon, M.C.L.A. 800.823(4); M.S.A. 28.1623(4), petitioner was denied his due process rights under the federal constitution. (U.S. Amends. V, VI, and XIV). V. Petitioner's rights to a fair and impartial trial (U.S. Const. Amends. V, VI, and XIV) were violated when Dr. Stephen Cohle, a medical doctor, forensic pathologist was permitted by the trial court, over petitioner's timely objection, to provide his expert testimony as whether the subject 72» shoelace with two attached buttons was a ligature strangulation device, an implement or weapon, prohibited by M.C.L.A. 800.823(4).
II. DISCUSSION
The instant petition must be dismissed without prejudice, because it contains claims which have 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). A prisoner confined pursuant to a Michigan conviction must raise each habeas issue in both the Michigan Court of Appeals and in the Michigan Supreme Court before seeking federal habeas corpus relief. Grant v. Rivers, 920 F. Supp. 769, 779 (E.D. Mich. 1996). A habeas petition that contains at least one issue that has not been presented to the state courts must be dismissed, because of the habeas petitioner's failure to comply with the total exhaustion rule. Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). 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) (internal citations omitted).
In the present case, respondent contends that petitioner's fifth claim was not properly exhausted, because it was only raised for the first time in the Michigan Supreme Court. Respondent also contends that portions of petitioner's third claim, which was designated as his first claim in his appellate brief in the Michigan courts, were not argued as federal constitutional claims in the state courts. Respondent also contends that petitioner's fifth claim was not raised as a federal constitutional issue in the Michigan Supreme Court.
Petitioner's fifth claim was not raised in the Michigan Court of Appeals, but was presented for the first time by petitioner in his application for leave to appeal to the Michigan Supreme Court. Petitioner, in fact, acknowledges that his fifth claim was raised only for the first time in the Michigan Supreme Court. Raising a claim for the first time before the state courts on discretionary review does not amount to a "fair presentation" of the claim to the state courts for exhaustion purposes. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Because petitioner failed to present his fifth claim on his direct appeal to the Michigan Court of Appeals, his subsequent presentation of the claim to the Michigan Supreme Court did not satisfy the exhaustion requirement for habeas purposes. See Winegar v. Corrections Department, 435 F. Supp. 285, 288-289 (W.D. Mich. 1977); See also Ellison v. Brown, 16 F.3d 1219, 1994 WL 43440, * 2 (6th Cir. February 14, 1994)(petitioner's later attempt to raise issues before the Michigan Supreme Court did not constitute exhaustion where he failed to raise the federal claims before the Michigan Court of Appeals).
Petitioner's fifth claim is also unexhausted because it appears to have been raised only as a state law issue. In the application for leave to appeal to the Michigan Supreme Court, petitioner claimed that Dr. Cohle, a pathologist, should not have been permitted to testify as an expert witness that the shoelace and buttons that were confiscated from petitioner constituted a prohibited implement or weapon under the statute. Petitioner noted that his trial counsel had objected to this expert testimony in a pre-trial motion and at trial. Petitioner further argued that expert witnesses must confine their opinions to their areas of qualification and expertise. A review of the pre-trial motion filed by petitioner's trial attorney shows that his trial attorney objected to Dr. Cohle's testimony pursuant to M.R.E. 702.
The exhaustion requirement requires that a federal habeas petitioner fairly present the substance of each federal constitutional claim to state courts using citations to the United States Constitution, federal decisions using constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns. Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993); Matthews v. Abramajtys, 92 F. Supp.2d 615, 627 (E.D. Mich. 2000). In order to exhaust state court remedies, a habeas petitioner must present his or her claim to the state courts as a federal constitutional issue, not merely as an issue that arises under state law. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984) (cites omitted). It is not enough that all the facts necessary to support the federal claim were presented to the state courts, or that a somewhat similar state law claim was made. Anderson v. Harless, 459 U.S. 4, 6 (1982). 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).
In the present case, petitioner's fifth claim is unexhausted because it was raised only for the first time on appeal with the Michigan Supreme Court and was not raised as a federal constitutional claim with that court.
Respondent further contends that a portion of petitioner's third claim is unexhausted, because it was not presented to the state courts as a federal constitutional claim. Petitioner contends that these claims were exhausted with the state courts, because in petitioner's brief on appeal with the Michigan Court of Appeals, petitioner's appellate counsel alleged that the prosecutor's actions violated petitioner's right to due process.
General appeals to broad constitutional principles, such as due process, equal protection, or the right to a fair trial, are insufficient to establish the exhaustion of federal claims, for purposes of habeas review. Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citing to Gray v. Netherland, 518 U.S. 152, 162-163 (1996)); See also McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000) (general allegations of the denial of rights to a "fair trial" and "due process" do not "fairly present" claims that specific constitutional rights were violated); Alley v. Bell, 101 F. Supp.2d 588, 613 (W.D. Tenn. 2000) (to exhaust state remedies, it is not enough for a petitioner to make a general appeal to a constitutional guarantee as broad as due process). It is not sufficient to scatter the words "due process" in a brief; counsel must sketch an argument about why the conviction violates that clause. "Due process" is such a `ductile concept' that such phrase-dropping is the equivalent of no argument at all. Riggins v. McGinnis, 50 F.3d 492, 494 (7th Cir. 1995) (citing to United States v. Agurs, 427 U.S. 97, 106-107 (1976)). A lawyer need not develop a constitutional argument at length, but he must make one; the words "due process" are not an argument. Riggins, 50 F.3d at 494.
In the present case, petitioner's brief reference in the headings of his appeals brief that the errors complained of violated due process was insufficient to put the state courts on notice that petitioner was alleging that his federal constitutional rights had been violated. Although petitioner properly exhausted his selective prosecution claim (Claim IIIA) by citing to federal cases in his appellate brief with the Michigan Court of Appeals, petitioner cited to no federal cases or federal constitutional provisions in his state appellate brief in support of Claim IIIB involving the usurpation of the parole board's authority by the prosecutors. This portion of petitioner's third claim therefore remains unexhausted.
With respect to Claim IIIC, the Court notes that petitioner did cite to Santobello v. New York, 404 U.S. 257 (1971) in his state appellate brief, in support of his claim that the Eaton and Ingham County Prosecutors breached plea bargains that they had entered into with petitioner in several homicide and sexual assault cases in those counties in 1979 by encouraging the Chippewa County Prosecutor to prosecute petitioner in this case. This Court concludes that Claim IIIC was fairly presented to the state courts as a federal constitutional claim and is therefore exhausted for the purposes of federal habeas review.
This Court concludes that Claims IIIB and V have 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. 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 at 628.
Petitioner has urged this Court to stay the current habeas petition pending his return to the state courts to exhaust these two claims, in lieu of dismissing the petition outright. A federal district court has the authority to abate or dismiss a federal habeas action pending resolution of state post-conviction proceedings. In order to stay federal proceedings and hold a habeas petition in abeyance pending resolution of state court proceedings, there must be exceptional or unusual circumstances. Hudson v. Martin, 68 F. Supp.2d 798, 800 (E.D. Mich. 1999). However, an indefinite, potentially lengthy stay is not authorized in the interests of judicial economy in a habeas case. Yong v. I.N.S., 208 F.3d 1116, 1120 (9th Cir. 2000).
The Court is concerned that dismissing the current petition might prevent petitioner, under the one year statute of limitations contained within 28 U.S.C. § 2244(d)(1), from refiling 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's application for leave to appeal on November 29, 2000. Petitioner did not seek a writ of certiorari with the United States Supreme Court. Where a state prisoner has sought direct review of his or her conviction in the state's highest court but does not file a petition for certiorari with the U.S. Supreme Court, the one year limitation period for seeking habeas review under 28 U.S.C. § 2244(d)(1) begins to run not on the date that the state court entered judgment against the prisoner, but on the date that the 90 day time period for seeking certiorari with the U.S. Supreme Court expired. Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). Petitioner's judgment therefore became final on February 27, 2001, 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 filed the instant application for writ of habeas corpus on August 20, 2001, which was after almost six months under the one year statute of limitations had run in this case. 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, See e.g. Matthews v. Abramajtys, 39 F. Supp.2d 871, 874 (E.D. Mich. 1999), the U.S. Supreme Court has held that 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 S.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.
In his concurring opinion, however, Justice Stevens, joined by Justice Souter, noted that in a post-AEDPA world, there was no reason why a district court should not retain jurisdiction over a meritorious claim contained in a habeas petition and stay further proceedings pending the exhaustion of additional claims in the state courts. Duncan v. Walker, 121 S.Ct. at 2130. Justice Stevens further 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." Id. 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." Duncan, 121 S.Ct. at 2130.
The question before this Court is whether it would be preferable to stay the current petition pending petitioner's return to the state courts to exhaust his remaining claims or whether it would be better to dismiss the petition outright, while at the same time, preserving a federal forum for petitioner's claims.
Petitioner has cited to the case of Palmer v. Carlton, 276 F.3d 777 (6th Cir. 2002) in support of his request that the current habeas petition be held in abeyance pending his return to the state courts to exhaust his claims. In Palmer, the Sixth Circuit cited to the case of Zarvela v. Artuz, 254 F.3d 374, 380 (2nd Cir. 2001), in which the Second Circuit ruled that a federal district court should dismiss the unexhausted claims in a mixed habeas petition and stay further proceedings, where an outright dismissal of the petition could jeopardize the timeliness of a collateral attack. The Sixth Circuit found the Second Circuit's approach in Zarvela to be "eminently reasonable", in that it addressed the equitable concerns raised by Justice Stevens in Duncan, preserved the interests in state-federal comity enunciated in Rose v. Lundy, 455 U.S. 509 (1982), and prevented the potential abuse of the writ perpetrated by some petitioners. Palmer v. Carlton, 276 F.3d at 781. However, the Sixth Circuit did not hold that this was the sole or exclusive method of dealing with habeas petitions that contained unexhausted claims or preserving a habeas petitioner's federal forum for raising his or her claims after returning to the state courts.
This Court notes that Justice Stevens suggested in his concurrence in Duncan that a federal district court could toll the limitations period contained within 28 U.S.C. § 2244(d)(1) as a "matter of equity" for the time that a first habeas petition was pending in the federal courts. 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 recently 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).
This Court concludes that a lengthy, indefinite stay of the current habeas petition is neither necessary or appropriate to preserve petitioner's federal forum for raising his claims. Instead, 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. Moreover, because 28 U.S.C. § 2244(d)(2) expressly provides that the one year statute of limitations contained in the AEDPA would be tolled during the pendency of petitioner's state post-conviction motion, a stay of his federal habeas proceeding is not necessary or appropriate to preserve the federal forum for all of petitioner's claims. Hudson v. Martin, 68 F. Supp.2d at 800 (citing to Healy v. DiPaolo, 981 F. Supp. 705, 708 (D. Mass. 1997)).
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. Indeed, it is respondent who has argued that the instant petition should be dismissed so that petitioner could return to the state courts to exhaust his remaining claims. It also appears that petitioner has been diligent with his direct appeals in the state courts and in seeking postconviction relief. 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.
IT IS FURTHER ORDERED that Respondent's Motion to Dismiss (Docket No. 13, filed March 20, 2002) is GRANTED WITHOUT PREJUDICE.