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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

FAREJ MOHAMED ALHAYADIR,

Petitioner,

CIVIL NO. 2:08-CV-14020

v. HONORABLE NANCY G. EDMUNDS

UNITED STATES DISTRICT COURT

LLOYD RAPELJE,

Respondent.

____________________________________/

OPINION AND ORDER OF SUMMARY DISMISSAL

Farej Mohamed Alhayadir, (“Petitioner”), presently confined at the Saginaw

Correctional Facility in Freeland, Michigan, has filed a petition for writ of habeas

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

challenges his convictions for first-degree criminal sexual conduct, M.C.L.A.

750.520b(1)(f); and domestic violence, M.C.L.A. 750.81(2). For the reasons

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

PREJUDICE.

I. Background

Petitioner was convicted of the above offenses following a bench trial in the

Wayne County Circuit Court. Petitioner filed an appeal, in which he challenged

the sufficiency of the evidence to convict him of these offenses. Petitioner’s

conviction was affirmed on appeal. People v. Alhayadir, No. 275369
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 See Petitioner’s Appendix B. 

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(Mich.Ct.App. January 29, 2008); lv. den. 481 Mich. 915; 750 N.W. 2d 217

(2008).

Petitioner has now filed a petition for writ of habeas corpus on the following

ground:

Petitioner’s conviction is a miscarriage of justice where petitioner is

being illegally held, for he is actually innocent of the current charge. 

The state courts demonstrated a (sic) “unreasonable application” of

Jackson v. Virginia, 443 U.S. 307 (1979).

In the body of his habeas application, petitioner raises the same sufficiency

of the evidence claim that he raised in the state courts. However, petitioner also

claims that the prosecution used perjured testimony from the victim’s sister,

Zeinab Alhroub, to convict him of this crime. In support of this claim, petitioner

has provided the Court an affidavit from Ms. Alhroub, dated April 25, 2008, in

which Ms. Alhroub purportedly recants her trial testimony and now claims that

she testified falsely at petitioner’s trial. 1

 Petitioner also appears to contend that

this is newly discovered evidence that would support his claim that he is actually

innocent of these charges.

II. Discussion

The instant petition must be dismissed without prejudice because it

contains at least one claim that has not been exhausted with the state courts.

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

The Antiterrorism and Effective Death Penalty Act (AEDPA) preserves the

traditional exhaustion requirement, which mandates dismissal of a habeas

petition containing claims that a petitioner has a right to raise in the state courts

but has failed to do so. Welch v. Burke, 49 F. Supp. 2d 992, 998 (E.D. Mich.

1999). 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)).

Petitioner raised one claim before the Michigan Court of Appeals, in which

he challenged the sufficiency of the evidence to convict him, because the

witnesses were unreliable and there was a lack of physical evidence to convict

him of the crime. Petitioner specifically noted that at trial, the victim in this case,

his wife, recanted her earlier preliminary examination testimony and statements

to the police that petitioner had sexually assaulted her. However, although

petitioner challenged the credibility of his wife’s sister, he did not specifically raise

a claim that the prosecutor knowingly presented perjured testimony, nor did he

claim that he had newly discovered evidence that would support a perjury claim

or an actual innocence claim. This Court particularly notes that Zeinab Alhroub’s

affidavit is signed and dated April 25, 2008, which was after the Michigan Court of

Appeals affirmed petitioner’s conviction on January 29, 2008. Moreover, a review
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 This Court obtained this information from the Internet website for the Michigan Court of

Appeals. Public records and government documents, including those available from reliable sources on

the Internet, are subject to judicial notice. See United States ex. rel. Dingle v. BioPort Corp., 270 F. Supp.

2d 968, 972 (W.D. Mich. 2003). A federal district court is thus permitted to take judicial notice of another

court’s website. See e.g. Graham v. Smith, 292 F. Supp. 2d 153, 155, n. 2 (D. Me. 2003). 

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of the Michigan Court of Appeals’ docket sheet indicates that petitioner filed his

application for leave to appeal with the Michigan Supreme Court on March 24,

2008, again before this affidavit was signed. 2

 It is obvious that this affidavit was

not presented as part of petitioner’s direct appeal.

In order to satisfy the exhaustion requirement, a habeas petitioner must

fairly present to the state courts either the substance of or the substantial

equivalent of the federal claim that he or she is presenting to a federal habeas

court. See Hicks v. Straub, 377 F. 3d 538, 552 (6th Cir. 2004). For purposes of

federal habeas review, exhaustion requires that a claim raised in a habeas

petition must be presented to the state courts under the same theory in which it is

later presented in federal court. Williams v. Bagley, 380 F. 3d 932, 969 (6th Cir.

2004). A claim may be considered “fairly presented” only if the petitioner

asserted both the factual and legal basis for his claim in the state courts. Hicks,

377 F. 3d at 552 (citing McMeans v. Brigano, 228 F. 3d 674, 681 (6th Cir. 2000)). 

Finally, a habeas petitioner cannot be said to have fairly presented his or her 

constitutional claim to the state courts when he or she “subsequently presents

new facts or legal arguments in habeas corpus that place the claim in a

significantly different posture than the claim that was presented to the state
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courts.” Stojetz v. Ishee, 389 F. Supp. 2d 858, 955 (S.D. Ohio 2005). 

In the present case, petitioner’s claim that his wife’s sister committed

perjury and her affidavit in support of that claim is factually and legally distinct

from his claim that the evidence was legally insufficient to convict him because

the witnesses were simply lacking in credibility. To prevail on a claim that a

conviction was obtained by evidence that the government knew or should have

known to be false, a defendant must show that the statements were actually

false, that the statements were material, and that the prosecutor knew they were

false. Coe v. Bell, 161 F. 3d 320, 343 (6th Cir. 1998). 

A perjury claim is obviously different from a sufficiency of evidence claim

because it involves an allegation that the witness’ testimony was false, as

opposed to simply being mistaken. Moreover, to prevail on a perjury claim, a

habeas petitioner must show that the prosecutor knew that the testimony was

false and failed to correct this testimony. 

Moreover, as mentioned above, Zeinab Alhroub’s affidavit was signed and

dated April 25, 2008, which was after the Michigan Court of Appeals affirmed

petitioner’s conviction and also after petitioner filed his application for leave to

appeal with the Michigan Supreme Court on March 24, 2008. Petitioner’s perjury

claim, based on Zeinab Alhroub’s recanting affidavit, is unexhausted, because

this claim is materially broader and better documented than the sufficiency of

evidence claim that was originally presented to the state courts. See Gaskins v.
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Duval, 89 F. Supp. 2d 139, 142 (D. Mass. 2000).

Petitioner’s claim involving the trial court’s decision to allow the admission

of perjured testimony is unexhausted, because petitioner did not raise a perjured

evidence claim in his appeal of right and therefore did not give the Michigan

courts a full and fair opportunity to review his perjured testimony claim. See

United States ex. rel. Winston v. Page, 955 F. Supp. 952, 957 (N.D. Ill. 1997). 

Likewise, to the extent that petitioner claims that Zeinab Alhroub’s affidavit

constitutes newly discovered evidence that he is innocent of these crimes,

petitioner would be required to present his actual innocence claim to the state

courts before a federal court could consider such a claim on habeas review. See

e.g. Howard v. Wolfe, 199 Fed. Appx. 529, 532 (6th Cir. 2006); Cammuse v.

Morgan, 105 Fed. Appx. 667, 669 (6th Cir. 2004). 

Petitioner’s method of properly exhausting these claims in the state courts

would be through filing a motion for relief from judgment with the Wayne 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. 6.505-6.507, 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
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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 his post-conviction motion. See e.g. Mohn v. Bock, 208 F.

Supp. 2d 796, 800 (E.D. Mich. 2002). 

Petitioner has failed to exhaust his state court remedies and still has an

available state court remedy with which to do so. 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, 125 S. Ct 1528 (2005),

there are no exceptional or unusual circumstances present which would justify

holding the instant petition for writ of habeas corpus in abeyance pending

petitioner’s return to the state courts to exhaust his claims, rather than dismissing

it without prejudice. In this case, the Michigan Supreme Court denied petitioner’s

application for leave to appeal on June 23, 2008. 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 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 Bronaugh v. Ohio, 235 F. 3d
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280, 283 (6th Cir. 2000). 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

September 21, 2008. See Grayson v. Grayson, 185 F. Supp. 2d 747, 750 (E.D.

Mich. 2002). 

The present habeas petition was filed with this Court on September 18,

2008, before petitioner’s conviction became final with the state courts. 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 the one year limitations period has yet to begin running in

this case, and the limitations period, or at least any unexpired portion of that

period, is tolled during the pendency of petitioner’s state post-conviction

proceedings, petitioner would not be prejudiced if his habeas petition was

dismissed without prejudice during the pendency of his motion for post-conviction

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 petition for writ of

habeas corpus will be dismissed without prejudice. 
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III. ORDER

Based on the foregoing, the Court ORDERS that the petition for writ of

habeas corpus is DISMISSED WITHOUT PREJUDICE.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: September 25, 2008

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

parties and/or counsel of record on September 25, 2008, by electronic

and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager