UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ALLEN ROY BRONTKOWSKI,

Petitioner, Civil No. 2:15-CV-11073

HONORABLE ARTHUR J. TARNOW

v. UNITED STATES DISTRICT JUDGE

LORI GIDLEY,

Respondent,

_________________________/

OPINION AND ORDER SUMMARILY DISMISSING WITHOUT PREJUDICE

THE PETITION FOR WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A

CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO PROCEED

IN FORMA PAUPERIS ON APPEAL 

Allen Roy Brontkowski, (“petitioner”), confined at the Central Michigan

Correctional Facility in St. Louis, Michigan, seeks the issuance of a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. In his application, filed pro se, petitioner

challenges his conviction for extortion, M.C.L.A. 750.213, four counts of unlawful

imprisonment, M.C.L.A. 750.349b, assault, M.C.L.A. 750.81, and possession of a

firearm during a felony (felony firearm), M.C.L.A. 750.227b. For the reasons

stated below, the petition for writ of habeas corpus is DISMISSED WITHOUT

PREJUDICE.

I. Background

Petitioner was convicted following a jury trial in the Macomb County Circuit

Court. 

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Petitioner filed an appeal of right, in which he raised the following claims:

Did the prosecutor deny Mr. Brontkowski due process and a fair trial by

failing to reveal the complete plea agreement with the accomplicewitness for his testimony thereby misleading the jury regarding the

witness’s credibility; was trial counsel ineffective for failing to

adequately cross-examine the witness on this issue, US Const. Am

XIV?

Petitioner’s conviction was affirmed on appeal. People v. Brontkowski, No.

313002, 2014 WL 1233894 (Mich. Ct. App. Mar. 25, 2014); lv. Den. 497 Mich.

855, 852 N.W.2d 630 (2014).

On March 12, 2015, petitioner filed a petition for writ of habeas corpus with

this Court. 1

 In addition to seeking relief on the claims that he raised on direct

appeal, petitioner also seeks habeas relief on the following “new issues”:

I. DNA evidence needs to be considered by the court. Via trial

transcripts there was no DNA on the weapon that the victim claims to

have been pistol whipped indicating that the victim lied in regards to the

testimony given. 

II. The prosecutor is bound by the rules of ethics and court rules from

having witnesses lie in order to obtain a conviction.

1

 Under the prison mailbox rule, a federal habeas petition is filed when the

prisoner gives his petition to prison officials for mailing to the federal courts.

Hudson v. Martin, 68 F. Supp. 2d 798, 799, n. 2 (E.D. Mich. 1999). Absent

evidence to the contrary, a federal court will assume that a prisoner gave his

habeas petition to prison officials on the date he signed it, for the purposes of the

AEDPA’s one year limitations period. Id. Because petitioner’s habeas petition is

signed and dated March 12, 2015, this Court assumes that this was the date that

petitioner actually filed his petition with this Court. 

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III. DVD evidence statement taken by the police that the prosecution

or defense counsel refused to show the jury. Failure on the part of the

aforementioned parties to enter the evidence shows that the

government was willing to hide the truth about the events leading to the

charges in which the defendant was convicted of. This issue violates

the defendant’s rights under XVI Amendments of the Constitution. The

right of due process is absolute and cannot be infringed upon.

IV. Defendant insists he was never read his Miranda rights by police.

V. Defendant contends that prosecutorial misconduct is apparent. The

prosecutor’s office had a duty to provide defendant with the totality of

the discovery packet. For such is not an option for the prosecutor. 

Furthermore, even if the prosecutor failed to provide all evidence that

prosecutor should have known that this is a judiciary responsibility and

to do otherwise is a clear violation of Michigan Court Rules coupled

with code of ethics for the officers of the court. Moreover, the standard

of conduct should be held at its highest regarding such an office. The

trust of the public cannot and should not diminish. The defendant

contends that this new issue should have been brought forth at the

lower courts (i.e.) The Michigan Court of Appeals and the Michigan

Supreme Court but has not. Moreover, defendant asserts that new

issues have been exhausted at the trial level. 

VI. Mr. Allen Brontkowski received ineffective assistance during court

proceedings in violation of his state and federal rights by his defense

counsel and thereby committing malpractice by defense counsel. The

trial court abused its discretion when it did not establish the failed

attempts of the defense counsel to identify the rules of law as it related

to witnesses’ testimony under oath. Appointed counsel having

abdicated his responsibility failed the defendant thus violated

defendant’s 5th, 6th, and 14th Amendment rights.

II. Discussion

The instant petition must be dismissed because it contains claims that

petitioner has failed to exhaust with the state courts.

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As a general rule, a state prisoner seeking federal habeas relief must first

exhaust his available state court remedies before raising a claim in federal court.

28 U.S.C. § 2254(b) and(c); Picard v. Connor, 404 U. S. 270, 275-78 (1971);

Hannah v. Conley, 49 F. 3d 1193, 1195 (6th Cir. 1995). A petition for a writ of

habeas corpus filed by a state prisoner shall not be granted unless the petitioner

has exhausted his available state court remedies, there is an absence of

available state corrective process, or circumstances exist that render such

process ineffective to protect the petitioner’s rights. See Turner v. Bagley, 401 F.

3d 718, 724 (6th Cir. 2005). Federal district courts must dismiss mixed habeas

petitions which contain both exhausted and unexhausted claims. Pliler v. Ford,

542 U.S. 225, 230 (2004)(citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). 

The failure to exhaust state court remedies may be raised sua sponte by a

federal court. Benoit v. Bock, 237 F. Supp. 2d 804, 806 (E.D. Mich. 2003); 28

U.S.C. § 2254(b)(3).

A habeas petitioner has the burden of proving that he or she has

exhausted his or her state court remedies. See Rust v. Zent, 17 F.3d 155, 160

(6th Cir. 1994). Federal habeas corpus relief is unavailable to a state prisoner

who fails to allege that he or she has exhausted his or her available state court

remedies. See Granville v. Hunt, 411 F. 2d 9, 11 (5th Cir. 1969). The instant

petition is subject to dismissal, because petitioner failed to allege or indicate in his

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petition that he has exhausted his state court remedies with respect to his claims.

See Peralta v. Leavitt, 56 Fed. Appx. 534, 535 (2nd Cir. 2003); See also Fast v.

Wead, 509 F. Supp. 744, 746 (N.D. Ohio 1981). Petitioner, in fact, acknowledges

on the face of his petition that he did not properly exhaust his new claims prior to

seeking habeas relief. Although petitioner indicates that he exhausted these

claims at the trial level, this would be insufficient to satisfy the exhaustion

requirement. The exhaustion requirement is satisfied only if a prisoner invokes

one complete round of the state’s established appellate review process, including

a petition for discretionary review to a state supreme court. O'Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999). A Michigan petitioner must present each

ground to both Michigan appellate courts before seeking federal habeas corpus

relief. See Mohn v. Bock, 208 F.Supp.2d 796, 800 (E.D.Mich.2002); see also

Baldwin v. Reese, 541 U.S. 27, 29 (2004). Because petitioner’s new claims were

never presented to the Michigan appellate courts; they have not been properly

exhausted. 

Petitioner’s method of properly exhausting his unexhausted claims in the

state courts would be through filing a motion for relief from judgment with the

Macomb County Circuit Court under M.C.R. 6.502. A trial court is authorized to

appoint counsel for petitioner, seek a response from the prosecutor, expand the

record, permit oral argument, and hold an evidentiary hearing. M.C.R. 6.505-

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6.507, 6.508 (B) and (C). Denial of a motion for relief from judgment is

reviewable by the Michigan Court of Appeals and the Michigan Supreme Court

upon the filing of an application for leave to appeal. M.C.R. 6.509; M.C.R. 7.203;

M.C.R. 7.302. Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D. Mich. 1997). 

Petitioner, in fact, is required to appeal the denial of his post-conviction motion to

the Michigan Court of Appeals and the Michigan Supreme Court in order to

properly exhaust the claims that he would raise in a post-conviction motion. See

e.g. Mohn v. Bock, 208 F. Supp. 2d at 800. 

Petitioner has failed to exhaust his state court remedies with respect to all

of the claims raised in his petition. Although a district court has the discretion to

stay a mixed habeas petition containing both exhausted and unexhausted claims

to allow the petitioner to present his unexhausted claims to the state court in the

first instance, See Rhines v. Weber, 544 U.S. 269 (2005), a stay of the petition is

unnecessary in this case. The Michigan Supreme Court denied petitioner’s

application for leave to appeal on September 5, 2014. However, the one year

statute of limitations under 28 U.S.C. § 2244(d)(1) did not begin to run on that

day. Where a state prisoner has sought direct review of his conviction in the

state’s highest court but does not file a petition for certiorari with the U.S.

Supreme Court, the one year limitation period for seeking habeas review under

28 U.S.C. § 2244(d)(1) begins to run not on the date that the state court entered

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judgment against the prisoner, but on the date that the 90 day time period for

seeking certiorari with the U.S. Supreme Court expired. See Jimenez v.

Quarterman, 555 U.S. 113, 119 (2009). Because petitioner did not seek a writ of

certiorari with the United States Supreme Court, petitioner’s judgment became

final, for the purpose of commencing the running of the one year limitations

period, on December 4, 2014. See Grayson v. Grayson, 185 F. Supp. 2d 747,

750 (E.D. Mich. 2002). 

Petitioner filed the instant petition with this Court on March 12, 2015, after

only three months had elapsed on the one year statute of limitations. This Court

is dismissing the petition without delay so that petitioner can return to the state

courts to exhaust these claims. 28 U.S.C. § 2244(d)(2) expressly provides that

the AEDPA’s one year statute of limitations is tolled during the pendency of any

state post-conviction motion filed by petitioner. Because petitioner has almost an

entire year remaining under the limitations period, and the unexpired portion of

that period would be tolled during the pendency of petitioner’s state postconviction proceedings, petitioner would not be prejudiced if his habeas petition

was dismissed without prejudice during the pendency of his motion for postconviction relief. Thus, a stay of the proceedings is not necessary or appropriate

to preserve the federal forum for petitioner’s claims. See Schroeder v. Renico,

156 F. Supp. 2d 838, 845-46 (E.D. Mich. 2001). Accordingly, the Court will

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dismiss the instant petition without prejudice. 

III. Conclusion

The Court dismisses the petition for writ of habeas corpus without

prejudice. The Court also denies petitioner a certificate of appealability. A

habeas petitioner must receive a certificate of appealability (“COA”) in order to

appeal the denial of a habeas petition for relief from either a state or federal

conviction. 2

 28 U.S.C. §§ 2253(c)(1)(A), (B). A court may issue a COA “only if

the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is

required to show that reasonable jurists could debate whether, or agree that, the

petition should have been resolved in a different manner, or that the issues

presented were adequate to deserve encouragement to proceed further. Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000). When a district court denies a habeas

petition on procedural grounds without reaching the prisoner’s underlying

constitutional claims, a certificate of appealability should issue, and an appeal of

the district court’s order may be taken, if the petitioner shows that jurists of

2

 Effective December 1, 2009, the newly created Rule 11 of the Rules

Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll.

§ 2254, provides that “[t]he district court must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” Rule 11(a), 28

U.S.C. foll. § 2254.

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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 district court was correct in its procedural ruling. Id. When 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 petition should be allowed to proceed further. 

In such a circumstance, no appeal would be warranted. Id. 

The Court declines to issue a certificate of appealability, because “jurists of

reason” would not find it debatable whether this Court was correct in its

procedural ruling that petitioner had failed to exhaust an available state court

remedy with respect to his claims. See Colbert v. Tambi, 513 F. Supp. 2d 927,

939 (S.D. Ohio 2007). 

Although this Court will deny a certificate of appealability to petitioner, the

standard for granting an application for leave to proceed in forma pauperis (IFP)

is a lower standard than the standard for certificates of appealability. See Foster

v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002)(citing United States v.

Youngblood, 116 F. 3d 1113, 1115 (5th Cir. 1997)). Whereas a certificate of

appealability may only be granted if petitioner makes a substantial showing of the

denial of a constitutional right , a court may grant IFP status if it finds that an

appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed.

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R.App.24 (a). “Good faith” requires a showing that the issues raised are not

frivolous; it does not require a showing of probable success on the merits. Foster,

208 F. Supp. 2d at 765. Although jurists of reason would not debate this Court’s

resolution of petitioner’s claims, the issues are not frivolous; therefore, an appeal

could be taken in good faith and petitioner may proceed in forma pauperis on

appeal. Id.

III. CONCLUSION

Accordingly, IT IS ORDERED that the petition for writ of habeas corpus is

SUMMARILY DISMISSED WITHOUT PREJUDICE. (Dkt. # 1).

IT IS FURTHER ORDERED that a certificate of appealability is DENIED. 

IT IS FURTHER ORDERED that petitioner will be granted leave to appeal

in forma pauperis. 

S/Arthur J. Tarnow 

Arthur J. Tarnow

Senior United States District Judge

Dated: April 10, 2015

I hereby certify that a copy of the foregoing document was served upon

parties/counsel of record on April 10, 2015, by electronic and/or ordinary mail.

S/Catherine A. Pickles 

Judicial Assistant

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