Jerome Sueing v. Kenneth T. McKee

503 F. App'x 354
CourtCourt of Appeals for the Sixth Circuit
DecidedOctober 26, 2012
Docket09-1671, 09-2511
StatusUnpublished
Cited by7 cases

This text of 503 F. App'x 354 (Jerome Sueing v. Kenneth T. McKee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jerome Sueing v. Kenneth T. McKee, 503 F. App'x 354 (6th Cir. 2012).

Opinions

OPINION

JANE B. STRANCH, Circuit Judge.

Jerome Sueing (“Petitioner”), a Michigan inmate, filed a timely habeas petition under 28 U.S.C. § 2254 that contained both exhausted and unexhausted claims. The district court dismissed the petition without prejudice for failure to exhaust state remedies. Later, but still within the federal limitations period, Petitioner asked the court to grant one of several forms of relief, including ruling on his exhausted claims. The district court construed Petitioner’s letter request as a motion filed under Federal Rule of Civil Procedure 60(b) and denied it. Petitioner appealed (No. 09-1671). Petitioner then filed a § 2254 petition containing only exhausted claims. The district court dismissed the petition with prejudice as barred by the statute of limitations, and Petitioner again appealed (No. 09-2511). For the reasons stated below, we REVERSE and REMAND in Appeal No. 09-1671 and DISMISS AS MOOT Appeal No. 09-2511.

I. PROCEDURAL HISTORY

A Michigan state court jury convicted Petitioner of indecent exposure. The trial court imposed a sentence of five to eight years in prison.

On direct appeal, the Michigan Court of Appeals affirmed, People v. Sueing, No. 268490, 2007 WL 2881046 (Mich.Ct.App. Aug. 16, 2007) (unpublished per curiam), and denied a motion for reconsideration. The Michigan Supreme Court denied review. People v. Sueing, 480 Mich. 1009, 743 N.W.2d 15 (2008). The United States Supreme Court denied a petition for a writ of certiorari, Sueing v. Michigan, 552 U.S. 1268, 128 S.Ct. 1672, 170 L.Ed.2d 372 (2008), and also denied rehearing, Sueing v. Michigan, 553 U.S. 1027, 128 S.Ct. 2106, 170 L.Ed.2d 834 (2008). Having completed his appeals on direct review, Petitioner had one year, until April 28, 2009, to file a federal habeas petition. 28 U.S.C. § 2244(d)(1)(A).

In September 2008, well within the limitations period, Petitioner filed a § 2254 habeas petition alleging eight grounds for relief. The following month the district court dismissed the petition without prejudice for failure to exhaust state remedies. Sueing v. Palmer, No. l:08-ev-932, 2008 WL 4820505 (WD.Mich. Oct. 31, 2008) (citing Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982)). The court recognized that the federal limitations period was running and was not tolled during the pendency of the § 2254 petition. 28 U.S.C. § 2244(d)(1); Duncan v. Walker, 533 U.S. 167, 181-82, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001). The court also acknowledged our instruction in Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir.2002), that, when faced with a mixed petition containing both exhausted and unexhaust-ed claims, “the district court should dismiss only the unexhausted claims and stay further proceedings on the remaining portion until the petitioner has exhausted his claims in the state court.” Sueing, 2008 WL 4820505, at *4 (citing Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005), and Griffin v. Rogers, 308 F.3d 647, 652 n. 1 (6th Cir.2002)).

The district court decided, however, that a stay under Rhines and Palmer was unnecessary because more than sixty days remained in the federal limitations period. Id. at *5. The court explained in the dis[356]*356missal order that if Petitioner promptly-filed a motion for relief from judgment in state court within thirty days after the dismissal of his federal habeas petition, the state filing would toll the federal limitations period until the Michigan Supreme Court issued its decision on the state filing. Petitioner would then have sufficient time to file a habeas petition in federal court containing only exhausted claims. Because Petitioner was “not in danger of running afoul of the statute of limitations,” the court declined to grant a stay of the exhausted claims. Id. The court further advised Petitioner that, if he elected not to pursue a motion for relief from judgment in state court, he should promptly file a habeas petition raising only exhausted claims before expiration of the limitations period. Id. The court simultaneously entered judgment and denied a certificate of appealability. Id. at **5-6. Petitioner did not appeal.

Upon receiving a copy of the dismissal order, Petitioner began preparing a motion for relief from judgment to be filed in state court. Prison authorities transferred him to another prison and, upon his arrival at the new facility on January 14, 2009, prison staff confiscated his legal property, including his work on the motion for relief from judgment. Petitioner filed a grievance challenging the confiscation of his legal property. Following an administrative hearing on January 28, 2009, prison authorities returned most of Petitioner’s legal property, but they did not return his nearly completed draft of the motion for relief from judgment. Petitioner re-created the motion, a task made more difficult by his limited access to the prison law library and lack of funds to copy legal materials.

On April 20, 2009, eight days before expiration of the federal limitations period, Petitioner asked the district court by letter to take one of four actions: grant a stay- and-abeyance, extend the time for filing a § 2254 petition, provide him with further guidance, or rule on all exhausted issues. The following day, Petitioner mailed his completed motion for relief from judgment to the clerk of the state court, but the clerk returned the motion to him for signature, and by the time the motion was officially filed in state court, the federal limitations period had expired.

The district court declined to grant any of the relief that Petitioner requested in his letter. The court treated the letter as a motion to set aside the judgment dismissing the habeas petition without prejudice, see Fed.R.Civ.P. 60(b), and denied the motion because Petitioner did not demonstrate entitlement to relief on any ground listed in that rule. In addition, the court observed that Petitioner had not refiled a habeas petition containing only exhausted claims within the limitations period. Concluding that it had no power to extend the limitations period, the court advised Petitioner to file a habeas petition containing only exhausted claims and seek equitable tolling of the limitations period. The court declined to grant equitable tolling prospectively. Petitioner filed a timely notice of appeal from the ruling. (No. 09-1671) This Court granted a certificate of appealability and appointed counsel for Petitioner.

Petitioner then filed a federal habeas petition containing only exhausted claims. Sueing v. McKee, Case No. 1:09-cv-479-JTN-ESC.

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Cite This Page — Counsel Stack

Bluebook (online)
503 F. App'x 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jerome-sueing-v-kenneth-t-mckee-ca6-2012.