UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION. v. Case No. 01-CV BC Honorable David M. Lawson PAUL RENICO,

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1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION JOSEPH RICHMOND, Petitioner, v. Case No. 01-CV BC Honorable David M. Lawson PAUL RENICO, Respondent. / OPINION AND ORDER CONDITIONALLY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND GRANTING LEAVE TO AMEND PETITION The petitioner, Joseph Richmond, has filed a petition for writ of habeas corpus under 28 U.S.C in which he, through counsel, challenges his state court convictions for first-degree felony murder and conspiracy to commit armed robbery. The respondent has filed an answer opposing the petition on the merits, and urging the Court to dismiss the petition as a mixed petition because all of the petitioner s claims have not been exhausted in the state courts. The Court agrees that the petition contains unexhausted claims, and will therefore dismiss it unless the petitioner files an amended petition or seeks a stay in this Court for the purpose of returning to state court to exhaust those claims. I. In 1996, a Recorder s Court jury in Detroit, Michigan found the petitioner guilty of firstdegree murder, Mich. Comp. Laws , armed robbery, Mich. Comp. Laws , and conspiracy to commit armed robbery, Mich. Comp. Laws a. The convictions arose from the fatal shooting of John Scott during a robbery allegedly set up by the petitioner. The trial court

2 imposed a sentence of life imprisonment for the murder, ten to twenty years in prison for the armed robbery, and time served for the conspiracy. On appeal to the Michigan Court of Appeals, the petitioner argued, among other things, that the prosecutor injected inadmissible evidence into the trial, argued facts not in evidence, vouched for the credibility of his witnesses, engaged in improper cross-examination of the sole defense witness, Vern Lloyd, and misstated the evidence during closing arguments. The underlying bases for this argument were the prosecutor s use of bad acts evidence, his cross-examination of Vern Lloyd, his characterization of Delrico Henley s testimony, and his vouching for both Henley and Dennis Johnson. The allegations of vouching for Henley and Johnson were based on the prosecutor s assertions that Henley called the police before being charged with the crime himself, that Henley wanted to tell the truth and knew that his statement to the police could be used against him, and that Dennis Johnson s testimony was not late embellishment. In addition to other claims not included in the habeas petition, the petitioner also argued in the Michigan Court of Appeals that defense counsel should have objected to the prosecutor s alleged misconduct and that the felony murder conviction should be reversed because there was no evidence of malice. In a motion filed on the same day as the defense brief, petitioner alleged that a remand to Recorder s Court was necessary to clarify the judgment of sentence and to develop his claim of ineffective assistance of counsel. The Michigan court of appeals granted a remand on the sentencing issue, but denied a remand on the issue of ineffective assistance of counsel. The court of appeals subsequently vacated the petitioner s armed robbery conviction on double jeopardy grounds, but affirmed his murder and conspiracy convictions. See People v. Richmond, No (Mich. Ct. App. Apr. 16, 1999). -2-

3 The petitioner then applied for leave to appeal in the Michigan Supreme Court, once again arguing prosecutorial misconduct, ineffective assistance of trial counsel, and insufficient evidence. The claims of prosecutor misconduct and defense counsel incompetence were the same as those asserted in the court of appeals. The supreme court denied leave to appeal because it was not persuaded that the questions presented should be reviewed.... People v. Richmond, No (Mich. Jan. 31, 2000). On January 30, 2001, the petitioner filed the pending habeas corpus petition, stating as his grounds for relief: I. Petitioner was denied due process and his right to a fair trial as a result of highly prejudicial and pervasive prosecutorial misconduct where the prosecutor improperly vouched for the credibility of the State s witnesses and personally testified to critical extra-record statements under the guise of cross-examination. II. III. Defendant was denied the effective assistance of counsel where his trial counsel failed to object to highly prejudicial prosecutorial misconduct and further failed to investigate, interview or present crucial alibi witnesses. Petitioner was denied due process where there was insufficient evidence to support his conviction for felony murder. II. A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C must first exhaust all state remedies. 28 U.S.C. 2254(b)(1); O Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)( state 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 ); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Exhaustion requires that a prisoner fairly present the substance of each federal constitutional claim to the state courts using citations to the United States -3-

4 Constitution, federal decisions using constitutional analysis, or state decisions employing constitutional analysis in similar fact patterns. Hannah v. Conley, 49 F.3d 1193, 1196 (6th Cir. 1995). The exhaustion requirement is satisfied when the highest court in the state in which the petitioner was convicted has been given a full and fair opportunity to rule on petitioner s claims. Rust, 17 F.3d at 160. A petitioner must present each ground to both appellate courts. Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich. 1999); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at 160. As stated in Anderson v. Harless, 459 U.S. 4 (1982), [i]t is not enough that all the facts necessary to support the federal claim were before the state courts... or that a somewhat similar state-law claim was made. Anderson, 459 U.S. at 6. A Michigan prisoner is required to raise each issue he seeks to present in the federal habeas proceeding before the Michigan Court of Appeals and the Michigan Supreme Court. Hafley, 902 F.2d at 483. In this case, although the petitioner exhausted state remedies for (1) the portion of his first claim that attacks the prosecutor s cross-examination of Vern Lloyd and related closing argument, (2) the portion of his second claim that challenges defense counsel s failure to object to the prosecutor s cross-examination of Vern Lloyd and related closing argument, and (3) his third claim (insufficient evidence), the petitioner did not exhaust state remedies for his other claims. Specifically, the petitioner did not raise in either state appellate court his habeas claim that the prosecutor bolstered Delrico Henley s testimony and vouched for Henley s credibility by soliciting the police officers opinions regarding Henley s truthfulness. Although he did allege that the prosecutor vouched for Henley s testimony, the factual basis for the allegation was different from the factual basis for the pending claim. -4-

5 Nor did the petitioner raise in either state appellate court his claim that defense counsel should have objected to the prosecutor s bolstering of, and vouching for, Henley through the police officers testimony. The extent that the petitioner is claiming his attorney s cross-examination of Delrico Henley was inadequate, see Pet., at 54, the claim is unexhausted because it was not raised in either state appellate court. The petitioner also did not exhaust state remedies for his claim that defense counsel failed to present alibi witnesses. He did raise that issue in his motion to remand, which he presented to the Michigan Court of Appeals, and the Sixth Circuit has concluded that raising a claim in a properly filed motion to remand constitutes fair presentation of the claim to the Michigan Court of Appeals. See Elmore v. Foltz, 768 F.2d 773, 775 (6th Cir. 1985). However, the petitioner did not raise his alibi claim in the brief supporting his motion to remand. Cf. Smith v. Digmon, 434 U.S. 332, 333 (1978) (concluding that the exhaustion requirement is satisfied when a claim is squarely raised in the petitioner s brief and vigorously opposed in the state s brief even if the state appellate court ignores the claim). Even assuming that the petitioner presented his alibi claim to the Michigan Court of Appeals, he did not renew the claim in his brief before the Michigan Supreme Court, although he did attach his motion to remand as an exhibit to his application for leave to appeal in the Michigan Supreme Court. Nor did he develop the claim in state court with affidavits from the alleged alibi witnesses, as he does here. The Court concludes that the petitioner has not met his burden of proving exhaustion of state remedies for all his claims. -5-

6 Generally, a federal district court should dismiss a mixed petition for a writ of habeas corpus, that is, one containing both exhausted and unexhausted claims, leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court. Rose v. Lundy, 455 U.S. 509, 510 (1982); 1 see also Rust, 17 F.3d at 160. Although the exhaustion requirement is strictly enforced, it is not a jurisdictional prerequisite for bringing a habeas petition. Granberry v. Greer, 481 U.S. 129, (1987); Pillette v. Foltz, 824 F.2d 494, 496 (6th Cir. 1987). For example, an unexhausted claim may be addressed if pursuit of a state court remedy would be futile, Witzke v. Withrow, 702 F. Supp. 1338, 1348 (W.D. Mich. 1988), or if the unexhausted claim is meritless such that addressing it would be efficient and not offend federal-state comity. Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987). A habeas petition may be denied on the merits, despite the petitioner s failure to exhaust state court remedies. 28 U.S.C. 2254(b)(2). 1 In Rose, the Court also discussed the possible consequences of these choices. The plurality indicated that under 28 U.S.C Rule 9(b), a prisoner who decides to proceed only with his exhausted claims and deliberately sets aside his unexhausted claims risks dismissal [with prejudice] of subsequent federal petitions. Id. at 521 [O'Connor, J., with three justices concurring]. -6-

7 In this case, petitioner has available avenues for relief in the state court system such that his pursuit of state court remedies would not be futile. For example, petitioner may file a motion for relief from judgment with the trial court under Mich. Ct. R et seq. raising the unexhausted claims. 2 He will have to show cause for failing to raise his unexhausted claims on direct review and resulting prejudice or a significant possibility of innocence. See Mich. Ct. R (D)(3). However, he would have to make a similar showing here if the Court concluded that there was no state remedy to exhaust. Gray v. Netherland, 518 U.S. 152, (1996); Hannah v. Conley, 49 F.3d 1193, & 1196 n.3 (6th Cir. 1995); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). Petitioner s unexhausted claims should be addressed to, and considered by, the state courts in the first instance. III. A federal district court has the authority to abate or dismiss a federal habeas action pending resolution of state post-conviction proceedings. Brewer v. Johnson, 139 F.3d 491, 493 (5th Cir. 1998). However, 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. Williams v. Vaughn, 3 F. Supp. 2d 567, 576 (E.D. Pa. 1998); Parker v. Johnson, 988 F. Supp. 1474, 1476 (N.D. Ga. 1998). The petitioner has failed to allege any exceptional or unusual circumstances that would justify staying federal proceedings while petitioner attempts to exhaust his additional claims in the Michigan courts. Likewise, the petitioner has failed to demonstrate that he would be prejudiced if the petition were dismissed without prejudice. However, exceptional circumstance are demonstrated claims. 2 This Court does not express any opinion regarding the merits of petitioner s unexhausted -7-

8 by the record. Title 28 of the United States Code 2244(d)(2) expressly provides that the time during which a properly filed application for state post-conviction relief or other collateral review is pending shall not be counted towards the period of limitations contained in the Antiterrorism and Effective Death Penalty Act (AEDPA). Matthews v. Abramajtys, 39 F. Supp. 2d 871, 874 (E.D. Mich. 1999). However, this Court has no evidence that the petitioner has filed such a petition. -8-

9 The petitioner s application for leave to appeal was denied by the Michigan Supreme Court on January 31, He had until May 1, 2001 to file a petition for writ of habeas corpus according to 28 U.S.C. 2244(d)(1) 3 Although he filed his petition in this Court on January 30, 2001, the Supreme Court has held that the filing of a federal habeas corpus petition does not trigger 28 U.S.C. 2244(d)(2) to suspend the running of the one-year statute of limitations. See Duncan v. Walker, 533 U.S. 167 (2001). However, the Supreme Court s decision in Duncan did not preclude the district courts from retain[ing] jurisdiction over a meritorious claim and stay[ing] further proceedings pending the complete exhaustion of state remedies, or from deeming the limitations period tolled for [a federal] petition as a matter of equity. Id. at 2130 (Stevens, J., concurring). See also Palmer v. Carlton, 276 F.3d 777, (6th Cir. 2002) (implicitly adopting Justice Stevens recommended course of action). In this case, the outright dismissal of the petition, albeit without prejudice, may result in preclusion of consideration of petitioner s claims in this Court due to the expiration of the statute of limitations. 28 U.S.C. 2241(d)(1). In order to avoid an injustice, the Court will allow petitioner to chose to either amend his petition to delete unexhausted claims, or return to state court to seek relief and hold the present petition in abeyance. The petitioner must make this election, however, with dispatch. See Palmer, 276 F.3d at 781 (adopting the approach taken in Zarvela v. Artuz, Petitioner s conviction became final ninety days after the decision of the Michigan Supreme Court, when the deadline expired for seeking a writ of certiorari in the United States Supreme Court. 28 U.S.C. 2244(d)(1)(A); Sup. Ct. R. 13(1); Allen v. Hardy, 478 U.S. 255, 258 n.1 (1986). -9-

10 F.3d 374, (2d Cir.), cert. denied, U.S., 122 S. Ct. 506 (2001)). IV. Accordingly, it is ORDERED that the petitioner may either file an amended petition with this Court omitting the unexhausted claim or a motion for relief from judgment with the state court on or before July 15, If the petitioner fails to file either an amended petition or motion for relief by July 15, 2002, the Court will dismiss the writ of habeas corpus without prejudice. If the petitioner files a motion for relief, he shall notify this Court that such motion papers have been filed in state court. The case shall then be held in abeyance pending the petitioner s exhaustion of the unexhausted issues. The petitioner shall file an amended petition within 30 days after the conclusion of the state court proceedings. To avoid administrative difficulties, the Court ORDERS the Clerk of Court to CLOSE this case for statistical purposes only. Nothing in this order or in the related docket entry shall be considered a dismissal or disposition of this matter. Dated: June 7, 2002 Copies mailed to: Mark J. Kriger, Esquire Michael J. Kemnitz, Esquire Brad H. Beaver, Esquire /s/ DAVID M. LAWSON United States District Judge -10-