UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOANA RISTA,

Petitioner,

 CASE NO. 5:14-CV-14688

v. HON. JUDITH E. LEVY

MICHIGAN 34TH DIST. CT.,

Respondent.

 /

OPINION AND ORDER DISMISSING THE PETITION FOR A

WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF

APPEALABILITY, AND DENYING LEAVE TO PROCEED IN

FORMA PAUPERIS ON APPEAL

I. Introduction

Joana Rista (“Petitioner”) has filed a pro se petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254 challenging a misdemeanor

disturbing the peace conviction, arising from her October 20, 2014 guilty

plea in the 34th District Court in Wayne County, Michigan. She was given

a 30-day diversionary sentence conditioned on her compliance with certain

requirements imposed by the district court.

The record reveals that Petitioner has not properly appealed her

conviction in the state courts. She filed a claim of appeal with the

Michigan Court of Appeals, which was dismissed for lack of jurisdiction. 

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The court stated that Petitioner could file a delayed application for leave

to appeal with the appropriate state circuit court pursuant to Michigan

Court Rule 7.103(B). Wayne Co. Airport v. Joana Rista, No. 324506 (Mich.

Ct. App. Nov. 14, 2014). Petitioner does not indicate that she has done so. 

Petitioner filed her federal habeas petition on December 11, 2014. In her

pleadings, she raises ten claims for relief concerning the charge against

her, the conduct of the prosecutor and judge, and the validity of her plea.

For the reasons stated herein, the Court will dismiss without

prejudice the petition for a writ of habeas corpus. The Court shall also

deny a certificate of appealability and deny leave to proceed in forma

pauperis on appeal.

II. Analysis

A prisoner filing a habeas petition 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 this requirement, the claims must be “fairly

presented” to the state courts, meaning that the prisoner must have

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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 must also be presented to the state courts as federal constitutional

issues. Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). Each issue

must be presented to the Michigan Court of Appeals and the Michigan

Supreme Court to satisfy the exhaustion 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). While the exhaustion requirement is not

jurisdictional, a “strong presumption” exists that a prisoner must exhaust

available state remedies before seeking federal habeas review. Granberry

v. Greer, 481 U.S. 129, 131, 134-35 (1987). The burden is on the petitioner

to prove exhaustion. Rust, 17 F.3d at 160.

The record in this case indicates that Petitioner has not exhausted

her habeas claims in the state courts before seeking habeas review in

federal court. Petitioner has an available avenue for relief in the state

court system, and accordingly, pursuit of state court remedies would not

be futile. She may file a delayed application for leave to appeal with the

state circuit court and then continue with her direct appeal in the state

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appellate courts as necessary. If such a remedy is no longer available, she

may file a motion for relief from judgment with the trial court under

Michigan Court Rule 6.500 et seq. and seek further appellate review in the

state courts as necessary. The unexhausted claims should be addressed

to, and considered by, the state courts in the first instance. Otherwise, the

Court cannot apply the standard found at 28 U.S.C. § 2254. Dismissal of

this petition without prejudice is appropriate.

III. Conclusion

For the reasons stated, the Court concludes that Petitioner has not

exhausted her claims in the state courts before seeking federal habeas

review. Accordingly, the Court DISMISSES WITHOUT PREJUDICE the

petition for a writ of habeas corpus. The Court makes no determination

as to the merits of Petitioner’s claims.1

Before Petitioner may appeal, a certificate of appealability must

issue. 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

1

The Court notes that the record is unclear about whether Petitioner is

still subject to probation or some other sentence so as to meet the “in custody”

requirement for proceeding on federal habeas review. See Lackawanna Cty.

Dist. Att’y v. Coss, 532 U.S. 394, 401 (2001); Maleng v. Cook, 490 U.S. 488,

490-91 (1989). The Court need not resolve that issue given the instant

dismissal.

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

When a 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 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. 

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. FED. R. APP. P. 24(a).

IT IS SO ORDERED.

s/Judith E. Levy 

JUDITH E. LEVY

UNITED STATES DISTRICT JUDGE

Dated: December 22, 2014

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon

counsel of record and any unrepresented parties via the Court’s ECF System to

their respective email or First Class U.S. mail addresses disclosed on the Notice of

Electronic Filing on December 22, 2014.

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s/Felicia M. Moses 

FELICIA M. MOSES

Case Manager

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