UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
DEMETRIUS BRADLEY,
Petitioner, Case No. 20-cv-10175
v. U.S. District Court Judge Gershwin A. Drain DANIEL LESATZ,
Respondent. / OPINION AND ORDER (1) DENYING IN PART AND GRANTING IN PART RESPONDENT’S MOTION TO DISMISS, (2) GRANTING PETITIONER’S REQUEST FOR A STAY AND TO HOLD THE AMENDED HABEAS PETITION IN ABEYANCE, AND (3) ADMINISTRATIVELY CLOSING THE CASE I. INTRODUCTION On January 23, 2020, pro se Petitioner Demetrius Bradley commenced this action by filing habeas corpus petition under 28 U.S.C. § 2254. ECF No. 1. At Petitioner’s request, the Court held the habeas petition in abeyance so Petitioner could pursue additional state remedies. ECF No. 6. In December 2020, Petitioner filed an amended habeas petition and a motion to lift the stay. ECF Nos. 7, 9. The 1 Court then lifted the stay and directed Respondent Daniel LeSatz to file a responsive pleading. ECF No. 10.
Respondent recently moved to dismiss the amended habeas petition because Petitioner failed to exhaust state remedies for one part of his third claim. ECF No. 13. Alternatively, Respondent asks the Court to postpone the date for filing a
response to the amended habeas petition to allow Petitioner to return to the state appellate courts and exhaust his claim. Id. at PageID.318. Petitioner is currently represented by retained counsel who seeks a stay, as he agrees that Petitioner did not exhaust state remedies for one of his issues. ECF No.
15. Because both parties agree that Petitioner did not exhaust state remedies for all his claims, the Court will DENY Respondent’s request to dismiss the amended petition and GRANT both Respondent’s and Petitioner’s requests for a stay. The
Court will also postpone the date for filing a response to the amended petition and administratively close this case.
II. BACKGROUND Petitioner was charged in Wayne County, Michigan with the following four counts: (1) first-degree murder, in violation of MICH. COMP. LAWS § 750.316; (2) assault with intent to commit murder, in violation of MICH. COMP. LAWS § 750.83;
(3) felon in possession of a firearm, in violation of MICH. COMP. LAWS § 750.224f; 2 and (4) possession of a firearm during the commission of, or attempt to commit, a felony (“felony firearm”), in violation of MICH. COMP. LAWS § 750.227b.
Petitioner’s first trial resulted in a mistrial. Although the jury found Petitioner guilty of being a felon in possession of a firearm (count three), it was unable to reach a verdict on counts one, two, and four. See 4/28/15 Trial Tr. (ECF No. 14-10,
PageID.798-801). The prosecution then retried Petitioner on the murder, assault, and felony- firearm counts. On November 11, 2015, the jury acquitted Petitioner of murder, but found him guilty of assault with intent to commit murder and felony-firearm. See
11/11/15 Trial Tr. (ECF No. 14-20, PageID.1501-02). On December 4, 2015, the trial court sentenced Petitioner to a term of thirty-five to fifty-five years in prison for the assault conviction, one to five years for the felon-in-possession conviction, and
two years for the felony-firearm conviction, with credit for 347 days already served. See 12/4/15 Sentencing Tr. (ECF No. 14-21, PageID.1540-41). On direct appeal from his convictions and sentences, Petitioner raised several claims, including one claim that the trial court relied on judicial fact-finding to score
offense variables 3, 4, 9, and 13 of the Michigan sentencing guidelines. The Michigan Court of Appeals rejected Petitioner’s claims and affirmed his convictions and sentences in an unpublished, per curiam opinion. See People v. Bradley, No.
3 331146 (Mich. Ct. App. Aug. 15, 2017). On April 4, 2018, the Michigan Supreme Court denied leave to appeal. See People v. Bradley, 501 Mich. 1043; 909 N.W.2d
256 (2018) (table decision). In 2019, Petitioner filed a motion for relief from judgment in which he raised several new claims. ECF No. 14-22. The trial court denied Petitioner’s motion on
the basis that he had not carried his burden of establishing entitlement to relief under Michigan Court Rule 6.508(D). See People v. Bradley, No. 15-000373-01-FC (Wayne Cty. Cir. Ct. Oct. 1, 2019); ECF No. 14-23. On January 23, 2020, Petitioner filed his initial habeas corpus petition, a
motion to hold his petition in abeyance, and a motion for enlargement to time to file a habeas petition before this Court. ECF Nos. 1, 3, and 4. He explained in his motion to hold his petition in abeyance that he was in the process of appealing the trial
court’s decision on his post-conviction motion. ECF No. 3, PageID.29-30. Before this Court could rule on Petitioner’s motion to hold his habeas petition in abeyance, the Michigan Court of Appeals denied leave to appeal the trial court’s decision on Petitioner’s motion for relief from judgment. See People v. Bradley, No.
352376 (Mich. Ct. App. Apr. 17, 2020); ECF No. 14-28, PageID.1829. Additionally, Petitioner filed another motion for relief from judgment and an amended motion for relief from judgment, in which he claimed that the trial court
4 erred by scoring offense variable 3, which is physical injury to a victim, as if he had been convicted of first-degree murder. ECF Nos. 14-24 and 14-25. Petitioner relied
on the Michigan Supreme Court’s holding in People v. Beck, 504 Mich. 605; 939 N.W.2d 213 (2019), “that due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was
acquitted.” Id., 504 Mich. at 629, 939 N.W.2d at 227. On July 21, 2020, this Court granted Petitioner’s motion to hold his habeas petition in abeyance and administratively closed this case. ECF No. 6. The trial court subsequently denied Petitioner’s second motion for relief from judgment and
the amended motion, ECF No. 14-26, and the Michigan Supreme Court denied leave to appeal the trial court’s decision on Petitioner’s first motion for relief from judgment. People v. Bradley, 506 Mich. 962; 950 N.W.2d 724 (2020) (table
decision). On December 22, 2020, Petitioner filed an amended petition for the writ of habeas corpus, ECF No. 7, and a motion to lift the stay, ECF No. 9. He raised eleven claims in his amended petition. ECF No. 7, PageID.67-69. Because Petitioner
alleged in his motion to lift the stay that all his issues were now exhausted, ECF No. 9, the Court re-opened this case, ECF No. 10. Petitioner’s state case, however, was still pending in the Michigan Court of Appeals on Petitioner’s Beck claim.
5 On January 20, 2022, the Michigan Court of Appeals affirmed the trial court’s scoring of offense variable 3. See People v. Bradley, No. 355549, 2022 WL 187978,
at *2 - *3 (Mich. Ct. App. Jan. 20, 2022). The Court of Appeals stated that Beck did not apply to Petitioner’s case, and even if it did, the trial court did not consider the acquitted first-degree murder charge in its assessment of points for offense variable
3. Id. III. LAW & ANALYSIS
Now before the Court is Respondent’s motion to dismiss the amended habeas corpus petition. ECF No. 13. He asserts Petitioner did not exhaust state remedies for the portion of his third claim that cites Beck and challenges the trial court’s scoring of offense variable 3 of the Michigan sentencing guidelines. See ECF No.
13, PageID.303-04 (Respondent’s argument) and ECF No. 7, PageID.111-12 (Petitioner’s claim that the trial court erred in scoring 100 points for offense variable 3).
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
DEMETRIUS BRADLEY,
Petitioner, Case No. 20-cv-10175
v. U.S. District Court Judge Gershwin A. Drain DANIEL LESATZ,
Respondent. / OPINION AND ORDER (1) DENYING IN PART AND GRANTING IN PART RESPONDENT’S MOTION TO DISMISS, (2) GRANTING PETITIONER’S REQUEST FOR A STAY AND TO HOLD THE AMENDED HABEAS PETITION IN ABEYANCE, AND (3) ADMINISTRATIVELY CLOSING THE CASE I. INTRODUCTION On January 23, 2020, pro se Petitioner Demetrius Bradley commenced this action by filing habeas corpus petition under 28 U.S.C. § 2254. ECF No. 1. At Petitioner’s request, the Court held the habeas petition in abeyance so Petitioner could pursue additional state remedies. ECF No. 6. In December 2020, Petitioner filed an amended habeas petition and a motion to lift the stay. ECF Nos. 7, 9. The 1 Court then lifted the stay and directed Respondent Daniel LeSatz to file a responsive pleading. ECF No. 10.
Respondent recently moved to dismiss the amended habeas petition because Petitioner failed to exhaust state remedies for one part of his third claim. ECF No. 13. Alternatively, Respondent asks the Court to postpone the date for filing a
response to the amended habeas petition to allow Petitioner to return to the state appellate courts and exhaust his claim. Id. at PageID.318. Petitioner is currently represented by retained counsel who seeks a stay, as he agrees that Petitioner did not exhaust state remedies for one of his issues. ECF No.
15. Because both parties agree that Petitioner did not exhaust state remedies for all his claims, the Court will DENY Respondent’s request to dismiss the amended petition and GRANT both Respondent’s and Petitioner’s requests for a stay. The
Court will also postpone the date for filing a response to the amended petition and administratively close this case.
II. BACKGROUND Petitioner was charged in Wayne County, Michigan with the following four counts: (1) first-degree murder, in violation of MICH. COMP. LAWS § 750.316; (2) assault with intent to commit murder, in violation of MICH. COMP. LAWS § 750.83;
(3) felon in possession of a firearm, in violation of MICH. COMP. LAWS § 750.224f; 2 and (4) possession of a firearm during the commission of, or attempt to commit, a felony (“felony firearm”), in violation of MICH. COMP. LAWS § 750.227b.
Petitioner’s first trial resulted in a mistrial. Although the jury found Petitioner guilty of being a felon in possession of a firearm (count three), it was unable to reach a verdict on counts one, two, and four. See 4/28/15 Trial Tr. (ECF No. 14-10,
PageID.798-801). The prosecution then retried Petitioner on the murder, assault, and felony- firearm counts. On November 11, 2015, the jury acquitted Petitioner of murder, but found him guilty of assault with intent to commit murder and felony-firearm. See
11/11/15 Trial Tr. (ECF No. 14-20, PageID.1501-02). On December 4, 2015, the trial court sentenced Petitioner to a term of thirty-five to fifty-five years in prison for the assault conviction, one to five years for the felon-in-possession conviction, and
two years for the felony-firearm conviction, with credit for 347 days already served. See 12/4/15 Sentencing Tr. (ECF No. 14-21, PageID.1540-41). On direct appeal from his convictions and sentences, Petitioner raised several claims, including one claim that the trial court relied on judicial fact-finding to score
offense variables 3, 4, 9, and 13 of the Michigan sentencing guidelines. The Michigan Court of Appeals rejected Petitioner’s claims and affirmed his convictions and sentences in an unpublished, per curiam opinion. See People v. Bradley, No.
3 331146 (Mich. Ct. App. Aug. 15, 2017). On April 4, 2018, the Michigan Supreme Court denied leave to appeal. See People v. Bradley, 501 Mich. 1043; 909 N.W.2d
256 (2018) (table decision). In 2019, Petitioner filed a motion for relief from judgment in which he raised several new claims. ECF No. 14-22. The trial court denied Petitioner’s motion on
the basis that he had not carried his burden of establishing entitlement to relief under Michigan Court Rule 6.508(D). See People v. Bradley, No. 15-000373-01-FC (Wayne Cty. Cir. Ct. Oct. 1, 2019); ECF No. 14-23. On January 23, 2020, Petitioner filed his initial habeas corpus petition, a
motion to hold his petition in abeyance, and a motion for enlargement to time to file a habeas petition before this Court. ECF Nos. 1, 3, and 4. He explained in his motion to hold his petition in abeyance that he was in the process of appealing the trial
court’s decision on his post-conviction motion. ECF No. 3, PageID.29-30. Before this Court could rule on Petitioner’s motion to hold his habeas petition in abeyance, the Michigan Court of Appeals denied leave to appeal the trial court’s decision on Petitioner’s motion for relief from judgment. See People v. Bradley, No.
352376 (Mich. Ct. App. Apr. 17, 2020); ECF No. 14-28, PageID.1829. Additionally, Petitioner filed another motion for relief from judgment and an amended motion for relief from judgment, in which he claimed that the trial court
4 erred by scoring offense variable 3, which is physical injury to a victim, as if he had been convicted of first-degree murder. ECF Nos. 14-24 and 14-25. Petitioner relied
on the Michigan Supreme Court’s holding in People v. Beck, 504 Mich. 605; 939 N.W.2d 213 (2019), “that due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was
acquitted.” Id., 504 Mich. at 629, 939 N.W.2d at 227. On July 21, 2020, this Court granted Petitioner’s motion to hold his habeas petition in abeyance and administratively closed this case. ECF No. 6. The trial court subsequently denied Petitioner’s second motion for relief from judgment and
the amended motion, ECF No. 14-26, and the Michigan Supreme Court denied leave to appeal the trial court’s decision on Petitioner’s first motion for relief from judgment. People v. Bradley, 506 Mich. 962; 950 N.W.2d 724 (2020) (table
decision). On December 22, 2020, Petitioner filed an amended petition for the writ of habeas corpus, ECF No. 7, and a motion to lift the stay, ECF No. 9. He raised eleven claims in his amended petition. ECF No. 7, PageID.67-69. Because Petitioner
alleged in his motion to lift the stay that all his issues were now exhausted, ECF No. 9, the Court re-opened this case, ECF No. 10. Petitioner’s state case, however, was still pending in the Michigan Court of Appeals on Petitioner’s Beck claim.
5 On January 20, 2022, the Michigan Court of Appeals affirmed the trial court’s scoring of offense variable 3. See People v. Bradley, No. 355549, 2022 WL 187978,
at *2 - *3 (Mich. Ct. App. Jan. 20, 2022). The Court of Appeals stated that Beck did not apply to Petitioner’s case, and even if it did, the trial court did not consider the acquitted first-degree murder charge in its assessment of points for offense variable
3. Id. III. LAW & ANALYSIS
Now before the Court is Respondent’s motion to dismiss the amended habeas corpus petition. ECF No. 13. He asserts Petitioner did not exhaust state remedies for the portion of his third claim that cites Beck and challenges the trial court’s scoring of offense variable 3 of the Michigan sentencing guidelines. See ECF No.
13, PageID.303-04 (Respondent’s argument) and ECF No. 7, PageID.111-12 (Petitioner’s claim that the trial court erred in scoring 100 points for offense variable 3).
The doctrine of exhaustion of state remedies requires state prisoners to give the state courts an opportunity to act on their claims before they present their claims to a federal court in a habeas corpus petition. 28 U.S.C. § 2254(b)(1), (c); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). This requirement is satisfied if the prisoner
6 “invok[es] one complete round of the State’s established appellate review process.” O’Sullivan, 526 U.S. at 845.
The Sixth Circuit Court of Appeals has explained that, “[i]n states such as Michigan with a two-tiered appellate system—that is, those that have both an intermediate appellate court and a state supreme court—a petitioner must present his
claims to the state supreme court in order to satisfy this exhaustion requirement.” Robinson v. Horton, 950 F.3d 337, 343 (6th Cir.) (citing O’Sullivan, 526 U.S. at 839–40, 845), cert. denied, 141 S. Ct. 658 (2020); see also Wagner v. Smith, 581 F.3d 410, 414-15 (6th Cir. 2009) (explaining that, to properly exhaust
state remedies, the applicant must have fairly presented the factual and legal basis for each of his claims to the state court of appeals and to the state supreme court before raising the claims in a federal habeas corpus petition).
Newly retained counsel for Petitioner admits in his response to Respondent’s motion to dismiss that Petitioner has not yet raised his Beck claim in the Michigan Supreme Court. ECF No. 15, PageID.2315. Counsel for Petitioner states, however, that Petitioner did not retain him until after the Michigan Court of Appeals issued its
recent order and that he will raise the unexhausted issue in the Michigan Supreme Court before the filing deadline. Id. at PageID.2315-16. Thus, both parties agree that one habeas issue has not been raised in the Michigan Supreme Court.
7 IV. CONCLUSION Accordingly,
IT IS HEREBY ORDERED that Respondent’s motion to dismiss the amended habeas corpus petition (ECF No. 13) is DENIED IN PART and GRANTED IN PART. The request to dismiss the amended petition for failure to
exhaust state remedies is DENIED, but the alternative request to postpone the date for failing a response to Petitioner’s claims is GRANTED. The deadline for filing a response to Petitioner’s claims is postponed until further notice. IT IS FURTHER ORDERED that Petitioner’s recent request to stay the
proceedings in this case and to hold his amended habeas petition in abeyance (ECF No. 15, PageID.2318) is GRANTED. IT IS FURTHER ORDERED that Petitioner’s request for at least sixty days
to file a motion to lift the stay after the Michigan Supreme Court disposes of his case (see id.) is GRANTED. Petitioner shall have sixty (60) days from the date that the Michigan Supreme Court disposes of his case to file a motion to lift the stay and a second amended petition for the writ of habeas corpus.
IT IS FURTHER ORDERED that this case is now administratively CLOSED.
8 IT IS SO ORDERED.
s/Gershwin A. Drain_________________ GERSHWIN A. DRAIN UNITED STATES DISTRICT JUDGE
Dated: February 28, 2022
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on February 28, 2022, by electronic and/or ordinary mail. /s/ Teresa McGovern Case Manager