Keigley 307342 v. Rewerts

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______

DANL KEIGLEY,

Petitioner, Case No. 1:20-cv-262

v. Honorable Paul L. Maloney

RANDEE REWERTS,

Respondent. ____________________________/ OPINION This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. Promptly after the filing of a petition for habeas corpus, the Court must undertake a preliminary review of the petition to determine whether “it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing § 2254 Cases; see 28 U.S.C. § 2243. If so, the petition must be summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions that lack merit on their face). A dismissal under Rule 4 includes those petitions which raise legally frivolous claims, as well as those containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434, 436-37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that the petition contains exhausted and unexhausted claims. Because Petitioner had less than 60 days remaining on his statute of limitation, the Court will stay this action and hold it in abeyance pending timely exhaustion of Petitioner’s state court remedies and compliance with the Court’s order. Discussion I. Factual allegations Petitioner Danl Keigley is incarcerated with the Michigan Department of Corrections at the Carson City Correctional Facility (DRF) in Montcalm County, Michigan. On December 1, 2016, following a three-day jury trial in the Ottawa County Circuit Court, Petitioner was convicted of two counts of first-degree child abuse. On February 3, 2017, the court sentenced Petitioner to concurrent sentences of 15 to 30 years for each count. On March 20, 2020, Petitioner filed his habeas corpus petition. Under Sixth Circuit precedent, the application is deemed filed when handed to prison authorities for mailing to the federal court. Cook v. Stegall, 295 F.3d 517, 521 (6th Cir. 2002). Petitioner placed his petition in

the prison mailing system on March 20, 2020. (Pet., ECF No. 1, PageID.23.) The petition raises five grounds for relief, as follows: I. Petitioner was denied a fair trial by the admission of injuries to the child that were not connected to Petitioner and were not relevant; the probative value was far outweighed by the overwhelmingly unfair prejudice, and the prejudice was exacerbated by the doctor’s emotional and inappropriate testimony concerning a suspected “diagnosis” of torture. II. Petitioner was denied a fair trial by the introduction, over objection, of shocking, gruesome and unfairly prejudicial photograph and the prejudice was exacerbated by the Doctor’s emotional testimony concerning the photograph. III. The trial court reversibly erred by not instructing the jury on the lesser offense of second-degree child abuse. Alternatively, defense counsel rendered ineffective assistance where he failed to request that instruction. IV. Petitioner was denied his Sixth and Fourteenth Amendment right to the effective assistance of counsel where his trial lawyer failed to (A)(i) rely on the available documents, witnesses and the trial testimony itself, and consult the available literature so as to garner the expertise necessary to effectively cross-examine Dr. Simms, thereby forgoing a substantial defense that [the 2 victim] was not abused, or (ii) was abused by Hollie, (B) can an expert witness in support of this defense, and (C) do all of the above which, when considered cumulatively, prejudiced the Petitioner. V. Petitioner was denied his Sixth and Fourteenth Amendment right to the effective assistance of Appellate counsel where his appellate lawyer did not raise argument I on direct appeal which establishes the good cause to overcome the procedural default. (Pet., ECF No.1, PageID.10, 12, 14, 16, 19.) II. Exhaustion of State Court Remedies Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that state courts have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a petitioner’s constitutional claim. Id. at 844, 848; see also Picard v. Connor, 404 U.S. 270, 275-77 (1971); Duncan v. Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982). To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to all levels of the state appellate system, including the state’s highest court. O’Sullivan, 526 U.S. at 845; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The district court can and must raise the exhaustion issue sua sponte when it clearly appears that habeas claims have not been presented to the state courts. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); Allen v. Perini, 424 F.2d 134, 138-39 (6th Cir. 1970). Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). The petition reveals that the first three grounds for habeas relief have been raised at all levels of the state court system. The fourth and fifth issues, however, have been raised, or soon will be raised, in the trial court only. 3 An applicant has not exhausted available state remedies if he has the right under state law to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). Petitioner has at least one available procedure by which to raise the issues he has presented in this application. He may file a motion for relief from judgment under Mich. Ct. R. 6.500 et seq. Under Michigan law, one such motion may be filed after August 1, 1995. Mich. Ct. R. 6.502(G)(1).

Petitioner has either very recently filed or soon will file his one allotted motion. Therefore, the Court concludes that he has at least one available state remedy. To properly exhaust his claim, Petitioner must pursue the motion for relief from judgment in the Ottawa County Circuit Court. If his motion is denied by the circuit court, Petitioner must appeal that decision to the Michigan Court of Appeals and the Michigan Supreme Court. O’Sullivan, 526 U.S. at 845; Hafley, 902 F.2d at 483 (“‘[P]etitioner cannot be deemed to have exhausted his state court remedies as required by 28 U.S.C. § 2254(b) and (c) as to any issue, unless he has presented that issue both to the Michigan Court of Appeals and to the Michigan Supreme Court.’”) (citation omitted). Because Petitioner has some claims that are exhausted and some that are not, his

petition is “mixed.” Under Rose v. Lundy, 455 U.S. 509, 522 (1982), district courts are directed to dismiss mixed petitions without prejudice in order to allow petitioners to return to state court to exhaust remedies. However, since the habeas statute was amended to impose a one-year statute of limitations on habeas claims, see 28 U.S.C. § 2244(d)(1), dismissal without prejudice often effectively precludes future federal habeas review. This is particularly true after the Supreme Court ruled in Duncan v. Walker, 533 U.S. 167, 181-82 (2001), that the limitations period is not tolled during the pendency of a federal habeas petition. As a result, the Sixth Circuit adopted a stay-and-abeyance procedure to be applied to mixed petitions. See Palmer v. Carlton, 276 F.3d 777, 781 (6th Cir. 2002). In Palmer, the Sixth Circuit held that when the dismissal of a mixed petition could jeopardize the timeliness of a subsequent petition, 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. Id.; see also Rhines v. Weber, 544 U.S. 269, 277 (2007) (approving stay-and-abeyance procedure); Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002).

Petitioner’s application is subject to the one-year statute of limitations provided in 28 U.S.C. § 2244(d)(1). Under that provision, the one-year limitations period runs from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner appealed his conviction to the Michigan Court of Appeals and the Michigan Supreme Court. The Michigan Supreme Court denied his application on December 21, 2018. Petitioner did not petition for certiorari to the United States Supreme Court, (Pet., ECF No. 1, PageID.4), though the ninety-day period in which he could have sought review in the United States Supreme Court is counted under § 2244(d)(1)(A). See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir. 2000). The ninety-day period expired on March

22, 2019. Accordingly, absent tolling, Petitioner would have one year, until Monday, March 23, 2020, in which to file his habeas petition. Petitioner filed the instant petition on March 20, 2020, three days before expiration of the limitations period. The running of the statute of limitations is tolled while “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). The statute of limitations is tolled from the filing of an application for state post-conviction or other collateral relief until a decision is issued by the state supreme court. Lawrence v. Florida, 549 U.S. 327 (2007). The statute is not tolled during the time that a Petitioner petitions for writ of certiorari in the United States Supreme Court. Id. at 332. Thus, so long as Petitioner’s request for collateral review is pending, the time will not count against him. But, until he files his motion and after the Michigan Supreme Court rules on his application for leave to appeal to that court, the statute of limitations will run. The Palmer Court has indicated that thirty days is a reasonable amount of time for a petitioner to file a motion for post-conviction relief in state court, and another thirty days is a reasonable amount of time for a petitioner to return

to federal court after he has exhausted his state-court remedies. Palmer, 276 F.3d at 781. See also Griffin, 308 F.3d at 653 (holding that sixty days amounts to a mandatory period of equitable tolling under Palmer). In the instant case, Petitioner has less than sixty days remaining before the statute of limitations expires. Petitioner therefore would not have the necessary 30 days to file a motion for post-conviction relief or the additional 30 days to return to this court before expiration of the statute of limitations. As a result, were the Court to dismiss the petition without prejudice for lack of exhaustion, the dismissal could jeopardize the timeliness of any subsequent petition. Palmer, 276 F.3d at 781.

The Supreme Court has held, however, that the type of stay-and-abeyance procedure set forth in Palmer should be available only in limited circumstances because over- expansive use of the procedure would thwart the AEDPA’s goals of achieving finality and encouraging petitioners to first exhaust all of their claims in the state courts. See Rhines v. Weber, 544 U.S. 269, 277 (2005). In its discretion, a district court contemplating stay and abeyance should stay the mixed petition pending prompt exhaustion of state remedies if there is “good cause” for the petitioner’s failure to exhaust, if the petitioner’s unexhausted claims are not “plainly meritless” and if there is no indication that the petitioner engaged in “intentionally dilatory litigation tactics.” Id. at 278. Moreover, under Rhines, if the district court determines that a stay is inappropriate, it must allow the petitioner the opportunity to delete the unexhausted claims from his petition, especially in circumstances in which dismissal of the entire petition without prejudice would “unreasonably impair the petitioner’s right to obtain federal relief.” Id. Petitioner has already recognized the need for a stay to preserve his habeas claims. He has filed a motion to stay this action and hold it in abeyance pending exhaustion of his state

court remedies with regard to habeas issues IV and V. To obtain that relief, Petitioner must show: (1) good cause for his failure to exhaust before filing his habeas petition; (2) that his unexhausted claims are not plainly meritless; and (3) that he has not engaged in intentionally dilatory litigation tactics. See Rhines, 544 U.S. at 277-78. The Court finds that Petitioner has made the showing required by Rhines. Accordingly, the Court will enter an order staying this action and holding in abeyance pending Petitioner’s timely exhaustion of his unexhausted habeas issues and compliance with the Court’s order.

Dated: April 8, 2020 /s/ Paul L. Maloney Paul L. Maloney United States District Judge