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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TERRY GANSKE,

Petitioner,

CASE NO. 2:08-CV-14144

v. HONORABLE PAUL D. BORMAN

JEFFREY WOODS,

Respondent.

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OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

AND DENYING A CERTIFICATE OF APPEALABILITY AND LEAVE TO PROCEED

ON APPEAL IN FORMA PAUPERIS

I. Introduction

This is a habeas case under 28 U.S.C. § 2254. Terry Ganske (“Petitioner”) is a state

prisoner currently confined at the Kinross Correctional Facility in Kincheloe, Michigan. He was

convicted of four drug charges in the Presque Isle County Circuit Court and was sentenced to

concurrent terms of 10 to 30 years imprisonment, seven to 20 years imprisonment, and two to

four years imprisonment in 2006. Following sentencing, Petitioner pursued a direct appeal with

the Michigan Court of Appeals, which ultimately affirmed his convictions. See People v.

Ganske, No. 264004, 2007 WL 2811541 (Mich. Ct. App. Sept. 27, 2007) (unpublished). 

Petitioner states that he did not timely seek leave to appeal with the Michigan Supreme Court

within 56 days of the Michigan Court of Appeals’ decision. See Petition, pp. 4, 10;

Memorandum, p. 3.

Petitioner, through counsel, has now filed the present petition for writ of habeas corpus
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raising claims concerning the effectiveness of trial counsel, the loss or destruction of evidence,

and the jury instructions. For the reasons set forth, the Court dismisses without prejudice the

petition for writ of habeas corpus. The Court also denies a certificate of appealability and leave

to proceed on appeal in forma pauperis.

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). A Michigan prisoner must raise each issue he seeks to

bring in a federal habeas proceeding to the state courts. Each issue must be presented to both the

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

requirement. See 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 has not met his burden of demonstrating exhaustion of state court remedies. 

Petitioner admits that he has not exhausted his habeas claims in the state courts by properly

presenting them to the Michigan Supreme Court. Petitioner has an available state court remedy

to challenge his convictions which must be exhausted before he seeks federal habeas review. 

For example, he may file a motion for relief from judgment pursuant to Michigan Court Rule

6.500 with the state trial court and then pursue his claims through the state appellate courts as
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Petitioner asserts that he filed a motion to vacate his convictions and sentences with the

trial court pursuant to MCR 6.508 which was dismissed in 2006 for lack of jurisdiction because

his appeal was pending. Such a non-prejudicial dismissal would not bar a second 6.500 motion.

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necessary.1

Federal habeas law provides that a habeas petitioner is only entitled to relief if he can

show that the state court adjudication of his claims resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established federal law as determined by the

Supreme Court of the United States. See 28 U.S.C. § 2254(d). If this Court were to review the

claims presented, such an action would deny the state courts the deference to which they are

entitled. The state courts must first be given a fair opportunity to rule upon each of Petitioner’s

claims. Otherwise, the Court is unable to apply the standard found at 28 U.S.C. § 2254.

III. Conclusion

For the reasons stated, the Court concludes that Petitioner has not fully exhausted his

state court remedies. Accordingly, the Court DISMISSES WITHOUT PREJUDICE the

petition for writ of habeas corpus. The Court makes no determination as to the merits of

Petitioner’s claims.

Before Petitioner may appeal this Court’s dispositive 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 district court denies a habeas

claim on procedural grounds without addressing the claim’s 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
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debatable whether the district court was correct in its procedural ruling. See Slack v. McDaniel,

529 U.S. 473, 484-85 (2000).

Having considered the matter, the Court concludes that reasonable jurists could not

debate whether the Court was correct in its procedural ruling. Accordingly, the Court DENIES

a certificate of appealability. The Court further DENIES Petitioner leave to proceed on appeal

in forma pauperis as any appeal would be frivolous. See Fed. R. App. P. 24(a).

IT IS SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: October 10, 2008

CERTIFICATE OF SERVICE

Copies of this Order were served on the attorneys of record by electronic means or U.S. Mail on

October 10, 2008.

s/Denise Goodine 

Case Manager