UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROYALE LAMPTON IRVIN, #364863,

Petitioner,

Civil Case No. 4:14-CV-13783

v. Honorable Linda V. Parker

THOMAS WINN,

Respondent.

__________________________________/

OPINION & ORDER DISMISSING THE PETITION FOR A WRIT OF

HABEAS CORPUS WITHOUT PREJUDICE, DENYING A CERTIFICATE

OF APPEALABILITY, AND DENYING LEAVE TO PROCEED IN FORMA

PAUPERIS ON APPEAL 

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Following a

jury trial in the Circuit Court for Wayne County, Michigan, Petitioner Royale

Lampton Irvin (“Petitioner”) was convicted of second-degree murder in violation

of Michigan Compiled Laws § 750.317, and possession of a firearm during the

commission of a felony, second offense, in violation of Michigan Compiled Laws

§ 750.227b. In 2011, he was sentenced to consecutive prison terms of 35 to 70

years and five years on those convictions. In his petition, he raises claims

concerning the admission of text messages at trial, an upward sentencing departure,

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the late appointment of preliminary examination counsel, and the constructive

denial/ineffectiveness of trial counsel. For the reasons set forth, the Court

dismisses without prejudice the petition for a writ of habeas corpus. The Court

also denies Petitioner a certificate of appealability and leave to proceed in forma

pauperis on appeal.

II. Analysis

A prisoner filing a petition for a writ of habeas corpus under 28 U.S.C.

§ 2254 must first exhaust all state remedies. See O’Sullivan v. Boerckel, 526 U.S.

838, 845 (1999) (“state prisoners must give the state courts one full fair

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). To satisfy the exhaustion requirement, the claims must be “fairly

presented” to the state courts, meaning that the petitioner must have asserted both

the factual and legal bases for the claims in the state courts. McMeans v. Brigano,

228 F.3d 674, 681 (6th Cir. 2000); see also Williams v. Anderson, 460 F.3d 789,

806 (6th Cir. 2006) (citing McMeans). The claims also must be presented to the

state courts as federal constitutional issues. Koontz v. Glossa, 731 F.2d 365, 368

(6th Cir. 1984). In Michigan, each issue must be presented to both the Michigan

Court of Appeals and the Michigan Supreme Court to satisfy the exhaustion

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requirement. 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.

Petitioner admits that he has not fully exhausted state court remedies as to all

of his claims. Petitioner states that he presented his first three habeas claims

(concerning the admission of text messages, an upward sentencing departure, and

the late appointment of preliminary examination counsel) to the state courts on

direct appeal of his convictions, but has not yet presented his fourth habeas claim

(concerning the constructive denial/ineffectiveness of trial counsel) to the state

courts for review. Petitioner indicates that he intends to file a motion for relief

from judgment with the state trial court, but has not yet done so. Petitioner has

thus failed to properly exhaust all of his claims in the state courts before

proceeding on federal habeas review.

Generally, a federal district court should dismiss a “mixed” habeas petition,

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

amending and resubmitting the habeas petition to present only exhausted claims to

the district court.” Rose v. Lundy, 455 U.S. 509, 510 (1982); see also Rust, 17 F.3d

at 160. While the exhaustion requirement is strictly enforced, it is not a

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jurisdictional prerequisite for bringing a habeas petition. Granberry v. Greer, 481

U.S. 129, 134-35 (1987). For example, an unexhausted claim may be addressed if

pursuit of state court remedies 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); see also 28 U.S.C. § 2254(b)(2)

(habeas petition may be denied on the merits despite the failure to exhaust state

remedies). Additionally, a federal court has discretion to stay a mixed habeas

petition to allow a petitioner to present his unexhausted claims to the state courts in

the first instance and then return to federal court on a perfected petition. Rhines v.

Weber, 544 U.S. 269, 276 (2005). Stay and abeyance, however, is available only

in “limited circumstances” such as where the one-year statute of limitations

applicable to federal habeas actions poses a concern, and the petitioner

demonstrates “good cause” for the failure to exhaust state court remedies before

proceeding in federal court, there is no evidence of intentional delay, and the

unexhausted claims are not “plainly meritless.” Id. at 277. Petitioner has not

shown the need for a stay.

First, the one-year statute of limitations, see 28 U.S.C. § 2244(d), does not

pose a problem for Petitioner provided he promptly pursues his state court

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remedies. The Michigan Supreme Court denied Petitioner leave to appeal on May

27, 2014. People v. Irvin, 846 N.W.2d 397 (2014). The one-year limitations

period did not begin to run until ninety days later (i.e., on August 25, 2014). See

Jimenez v. Quarterman, 555 U.S. 113, 119-20 (2009); Lawrence v. Florida, 549

U.S. 327, 333 (2007); S. Ct. R. 13(1). Petitioner dated his federal habeas petition

on September 25, 2014. Thus, only one month of the one-year period had run

when Petitioner instituted this action. While the time in which a habeas case is

pending in federal court is not statutorily tolled, see Duncan v. Walker, 533 U.S.

167, 181-82 (2001), such time is equitably tolled by the courts. See Johnson v.

Warren, 344 F. Supp. 2d 1081, 1088-89 (E.D. Mich. 2004). Petitioner thus has

sufficient time, about eleven months, to seek collateral review of his unexhausted

claim in the state courts (thereby tolling the one-year period) and return to federal

court on a perfected petition.

Second, while there is no indication that Petitioner has engaged in

“intentionally dilatory tactics,” he has not shown good cause for failing to fully

exhaust all of his claims in the state courts before seeking relief in federal court. 

While Petitioner may have discovered new issues in reviewing the state court

record, he offers no reason for failing to pursue such matters on collateral review in

the state courts before filing his habeas petition. Third, Petitioner’s unexhausted

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claim concerns a matter of federal law which does not appear to be “plainly

meritless.” Given such circumstances, a stay is unwarranted and a non-prejudicial

dismissal of the petition is appropriate.

Accordingly,

The Court concludes that Petitioner has not exhausted available state court

remedies as to all of his habeas claims and is DISMISSING WITHOUT

PREJUDICE his petition for a writ of habeas corpus. Should Petitioner wish to

delete the unexhausted claim and proceed only on the fully exhausted claims,

within thirty (30) days of the filing date of this Order, he shall move to re-open this

case and amend his petition to proceed only on the exhausted claims. The Court

makes no determination as to the merits of his claims.

Before Petitioner may appeal the Court’s decision, a certificate of

appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A

certificate of appealability may issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a

federal court denies relief on procedural grounds without addressing the merits, a

certificate of appealability should issue if it is shown that jurists of reason would

find it debatable whether the petitioner states a valid claim of the denial of a

constitutional right, and that jurists of reason would find it debatable whether the

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court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484-

85 (2000). Reasonable jurists could not debate the correctness of the Court’s

procedural ruling that the claims in the petition are not fully exhausted and that the

petition should be dismissed. Accordingly, the Court DENIES a certificate of

appealability. The Court also DENIES leave to proceed in forma pauperis on

appeal as an appeal cannot be taken in good faith. See Fed. R. App. P. 24(a).

IT IS SO ORDERED. 

 S/ Linda V. Parker 

 LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: October 28, 2014

I hereby certify that a copy of the foregoing document was mailed to counsel of

record and/or pro se parties on this date, October 28, 2014, by electronic and/or

U.S. First Class mail.

S/ Richard Loury 

Case Manager

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