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Case 1:13-cv-00650-RJJ-HWB Doc #4 Filed 07/11/13 Page 1 of 8 Page ID#81

UNITED STATES OF AMERICA

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION



RANDY MAYFIELD CURRY-HOWARD,

Petitioner,

Case No. 1:13-cv-650

Honorable Robert J. Jonker

v.

WILLIE SMITH,

____________________________________/

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 will dismiss the petition without prejudice for failure to exhaust

available state-court remedies.

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Discussion

I.

Factual allegations

Petitioner Randy Mayfield Curry-Howard presently is incarcerated at the Carson City

Correctional Facility. Following a jury trial in the Kent County Circuit Court, Petitioner was

convicted of one count of first-degree criminal sexual conduct (CSC I) and two counts of second-

degree criminal sexual conduct (CSC II). On January 20, 2011, Petitioner was sentenced to one term

of 9 to 40 years and two terms of 6 to 15 years.

Petitioner appealed his convictions to the Michigan Court of Appeals, raising two

grounds: (1) ineffective assistance of trial counsel; and (2) insufficiency of the evidence. In an

unpublished decision issued April 19, 2012, the court of appeals rejected both appellate grounds and

affirmed the convictions. Petitioner, through counsel, sought leave to appeal to the Michigan

Supreme Court, raising a variation of the same two grounds:

I.

THE COURT OF APPEALS ERRED BY DENYING A REQUEST FOR
REMAND TO BUILD AN EVIDENTIARY RECORD WHEN THE
DENIAL WAS THE RESULT OF INEFFECTIVE ASSISTANCE OF
APPELLATE COUNSEL OR A MISINTERPRETATION OF THE
RECORD; AND ERRED IN FINDING THAT DEFENDANT’S TRIAL
ATTORNEY WAS NOT INEFFECTIVE AT TRIAL WHICH DENIED
DEFENDANT HIS STATE AND FEDERAL RIGHT TO THE EFFECTIVE
ASSISTANCE OF TRIAL AND APPELLATE COUNSEL PURSUANT TO
THE SIXTH AMENDMENT OF THE CONSTITUTION AND CONST.
1963. ART 1, § 20.

II.

THE COURT OF APPEALS ERRED IN FINDING THERE WAS
SUFFICIENT EVIDENCE TO CONVICT DEFENDANT OF FIRST-
DEGREE CRIMINAL SEXUAL CONDUCT.

(Attach. A to Pet., docket #1-1, Page ID#10.)

In his habeas application, Petitioner raises the identical grounds presented to and

rejected by the Michigan Supreme Court. Together with his habeas application, Petitioner has filed

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a motion to stay and to hold the petition in abeyance to permit him time to file a motion for relief

from judgment in the Michigan courts on claims of newly discovered exculpatory evidence and the

constructive denial of trial counsel.

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. See O’Sullivan, 526 U.S. at 842; Picard v. Connor, 404 U.S. 270, 275-77

(1971), cited in Duncan v. Henry, 513 U.S. 364, 365 (1995), and 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. Duncan, 513

U.S. at 365-66; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d

480, 483 (6th Cir. 1990). “[S]tate 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.” O’Sullivan, 526 U.S. at 845. 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, 424 F.2d at 138-39.

Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160

(6th Cir. 1994). According to his habeas application, Petitioner fairly presented the claims of

ineffective assistance of counsel and insufficiency of the evidence in both the Michigan Court of

Appeals and the Michigan Supreme Court. Petitioner acknowledges, however, that he has not yet

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raised his two new claims of (1) newly discovered evidence of fabricated witness testimony, and

(2) the complete denial of trial counsel during portions of the trial proceedings. In addition, the

Court notes that Petitioner has failed to raise his claim of ineffective assistance of appellate counsel

to all levels of the Michigan courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989) (holding that

presentation of an issue for the first time on discretionary review to the state supreme court does not

fulfill the requirement of “fair presentation”).

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 new issues he intends to add to his habeas

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 not yet filed his one allotted motion. Therefore, the Court concludes that he has at

least one available state remedy. In order to properly exhaust his claim, Petitioner must file a motion

for relief from judgment in the Kent 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. See Duncan, 513 U.S. at 365-66.

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

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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 § 2244(d)(1)(A), 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.” Petitioner appealed his conviction to the Michigan Court of Appeals and

the Michigan Supreme Court. The Michigan Supreme Court denied his application on September

24, 2012. Petitioner did not petition for certiorari to the United States Supreme Court, 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 Monday, December 24, 2012. Accordingly, absent tolling, Petitioner

has one year, or until December 24, 2013, in which to file his habeas petition.

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

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amounts to a mandatory period of equitable tolling under Palmer). Petitioner has far more than

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sixty days remaining in his limitations period. Assuming that Petitioner diligently pursues his state-

court remedies and promptly returns to this Court after the Michigan Supreme Court issues its

decision, he is not in danger of running afoul of the statute of limitations. Therefore a stay of these

proceedings is not warranted. Should Petitioner decide not to pursue his unexhausted claims in the

state courts, he may file a new petition raising only exhausted claims at any time before the

expiration of the limitations period.

Conclusion

For the foregoing reasons, the Court will dismiss the petition for failure to exhaust

available state-court remedies.

Certificate of Appealability

Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of

appealability should be granted. A certificate should issue if Petitioner has demonstrated a

“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This Court’s

dismissal of Petitioner’s action under Rule 4 of the Rules Governing § 2254 Cases is a determination

that the habeas action, on its face, lacks sufficient merit to warrant service. It would be highly

unlikely for this Court to grant a certificate, thus indicating to the Sixth Circuit Court of Appeals that

an issue merits review, when the Court already has determined that the action is so lacking in merit

that service is not warranted. See Love v. Butler, 952 F.2d 10 (1st Cir. 1991) (it is “somewhat

anomalous” for the court to summarily dismiss under Rule 4 and grant a certificate); Hendricks v.

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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).

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Vasquez, 908 F.2d 490 (9th Cir. 1990) (requiring reversal where court summarily dismissed under

Rule 4 but granted certificate); Dory v. Comm’r of Corr., 865 F.2d 44, 46 (2d Cir. 1989) (it was

“intrinsically contradictory” to grant a certificate when habeas action does not warrant service under

Rule 4); Williams v. Kullman, 722 F.2d 1048, 1050 n.1 (2d Cir. 1983) (issuing certificate would be

inconsistent with a summary dismissal).

The Sixth Circuit Court of Appeals has disapproved the issuance of blanket denials

of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district

court must “engage in a reasoned assessment of each claim” to determine whether a certificate is

warranted. Id. at 467. Each issue must be considered under the standards set forth by the Supreme

Court in Slack v. McDaniel, 529 U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this

Court has examined each of Petitioner’s claims under the Slack standard.

This Court denied Petitioner’s application on the procedural ground of lack of

exhaustion. Under Slack, 529 U.S. at 484, when a habeas petition is denied on procedural grounds,

a certificate of appealability may issue only “when the prisoner shows, at least, [1] that jurists of

reason would find it debatable whether the petition states a valid claim of the denial of a

constitutional right and [2] that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Both showings must be made to warrant the grant of a

certificate. Id. The Court finds that reasonable jurists could not debate that this Court correctly

dismissed the petition on the procedural ground of lack of exhaustion. “Where a plain procedural bar

is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist could

not conclude either that the district court erred in dismissing the petition or that the petitioner should

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be allowed to proceed further.” Id. Therefore, the Court denies Petitioner a certificate of

appealability.

A Judgment consistent with this Opinion will be entered.

Dated: July 11, 2013

/s/Robert J. Jonker

ROBERT J. JONKER

UNITED STATES DISTRICT JUDGE

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