UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DENNIS FARMER,

Petitioner, 

v.

DUNCAN MACLAREN,

Respondent. 

 /

Case Number: 2:15-CV-11572

HONORABLE PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

OPINION AND ORDER DISMISSING HABEAS CORPUS PETITION 

WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY

I. Introduction

This is a habeas case filed under 28 U.S.C. § 2254. Petitioner Dennis Farmer is a

state inmate currently incarcerated at the Kinross Correctional Facility in Kincheloe,

Michigan. He challenges his convictions for first-degree felony murder and felony

firearm on the ground that he was denied his Sixth Amendment right to counsel. 

Petitioner has not exhausted this claim in state court. Therefore, the Court dismisses the

petition for a writ of habeas corpus without prejudice. 

II. Background

Petitioner was convicted by a jury in Wayne County Circuit Court of first-degree

felony murder, armed robbery, and felony firearm. On May 22, 2002, he was sentenced

to life imprisonment for the murder conviction and two years in prison for the felonyfirearm conviction. 

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Petitioner filed an appeal of right in the Michigan Court of Appeals raising these

claims: (i) prosecutorial misconduct; (ii) co-defendant’s statement was improperly

admitted; (iii) trial court erred in denying motion to suppress Petitioner’s statement; and

(iv) ineffective assistance of trial counsel. The Michigan Court of Appeals affirmed

Petitioner’s convictions. People v. Farmer, No. 246776, 2004 WL 2877320 (Mich. Ct.

App. Dec. 14, 2004). Petitioner filed an application for leave to appeal in the Michigan

Supreme Court. The Michigan Supreme Court denied leave to appeal. People v. Farmer,

474 Mich. 853 (Mich. 2005). 

Petitioner then filed the pending habeas petition. He raises a single claim:

Petitioner is being unlawfully imprisoned where he was denied the

assistance of counsel in violation of the Sixth Amendment to the

Constitution as made obligatory upon the states by the Fourteenth

Amendment. 

III. Discussion

A.

Upon the filing of a habeas corpus petition, the court must promptly examine the

petition to determine “if it plainly appears from the face of the petition and any exhibits

annexed to it that the petitioner is not entitled to relief.” Rule 4, Rules Governing Section

2254 cases. If the court determines that the petitioner is not entitled to relief, the court

shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) 

(“Federal courts are authorized to dismiss summarily any habeas petition that appears

legally insufficient on its face”). The habeas petition contains only an unexhausted claim;

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therefore, the petition will be dismissed.

B.

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)

(“[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.”). To satisfy this requirement, the claims must be “fairly presented” to

the state courts, meaning that the prisoner must have asserted both the factual and legal

bases for the claims in the state courts. See McMeans v. Brigano, 228 F.3d 674, 681 (6th

Cir. 2000). The claims must also be presented to the state courts as federal constitutional

issues. See Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). While the exhaustion

requirement is not jurisdictional, a “strong presumption” exists that a petitioner must

exhaust available state remedies before seeking federal habeas review. See Granberry v.

Greer, 481 U.S. 129, 131, 134-35 (1987). State prisoners in Michigan must raise each

claim in the Michigan Court of Appeals and in the Michigan Supreme Court before

seeking federal habeas corpus relief. See Delisle v. Rivers, 161 F.3d 370, 381 (6th Cir.

1998). The burden is on the petitioner to prove exhaustion. Rust v. Zent, 17 F.3d 155,

160 (6th Cir. 1994).

Petitioner fails to satisfy his burden of showing exhaustion of state court remedies. 

He did not raise the denial of counsel claim on direct review. A prisoner is required to

comply with this exhaustion requirement as long as there is still a state-court procedure

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available for him to do so. See Adams v. Holland, 330 F.3d 398, 401 (6th Cir. 2003). In

this case, a procedure is available to Petitioner. He may file a motion for relief from

judgment in the Wayne County Circuit Court under Michigan Court Rule 6.502. If that

motion is denied, he may seek review by the Michigan Court of Appeals and Michigan

Supreme Court by filing an application for leave to appeal. Mich. Ct. R. 6.509; Mich. Ct.

R. 7.203; Mich. Ct. R. 7.302. 

Where a petition contains both exhausted and unexhausted claims, a district court

may dismiss the unexhausted claims, retain jurisdiction over the exhausted claims, and

stay proceedings pending exhaustion. Rhines v. Weber, 544 U.S. 269, 278 (2005); Griffin

v. Rogers, 308 F.3d 647, 652, n.1 (6th Cir. 2002). In this case, the petition contains no

exhausted claims over which the Court may retain jurisdiction. Thus, the Court will

dismiss the petition without prejudice so that Petitioner may pursue exhaustion of his

state court remedies. 

IV. Certificate of Appealability

Federal Rule of Appellate Procedure 22 provides that an appeal may not proceed

unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule 11 of

the Rules Governing Section 2254 Proceedings requires that a court “issue or deny a

certificate of appealability when it enters a final order adverse to the applicant.” 

A COA may be issued “only if the applicant has made a substantial showing of the

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

threshold is satisfied when a petitioner demonstrates “that reasonable jurists would find

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the district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). 

In this case, the Court concludes that reasonable jurists would not debate the

conclusion that the petition’s single claim is unexhausted. Therefore, the Court will deny

a certificate of appealability.

V. Conclusion

For the foregoing reasons, IT IS ORDERED that the petition for a writ of habeas

corpus is DISMISSED WITHOUT PREJUDICE. 

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

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: May 18, 2015

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each

attorney or party of record herein by electronic means or first class U.S. mail on May 18,

2015.

s/Deborah Tofil 

Case Manager

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