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Petitioner was incarcerated at the Hiawatha Correctional Facility in Kincheloe,

Michigan, when he initially filed his habeas petition.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DENNIS ALEXANDER,

Petitioner,

v.

JEFFREY WOODS,

Respondent. 

/

Case Number: 08-CV-14494

Honorable Arthur J. Tarnow

OPINION AND ORDER

GRANTING RESPONDENT’S MOTION TO DISMISS THEREBY DISMISSING

PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE

Petitioner Dennis Alexander, a Michigan state inmate, currently incarcerated at the

Kinross Correctional Facility in Kincheloe, Michigan,1

 filed a pro se petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. On April 17, 2007, Petitioner pleaded guilty to (1) felony

firearm, MICH. COMP. LAWS § 750.227BA, and (2) felon in possession, MICH. COMP. LAWS §

750.224F, in the Wayne County, Michigan, circuit court. On July 17, 2007, he was sentenced, as

a habitual offender, fourth, MICH. COMP. LAWS § 750.12, to the mandatory two-years

imprisonment for the felony-firearm conviction, and eighteen-months to five-years imprisonment

for the felon-in-possession conviction. In lieu of filing an answer, Respondent filed a motion to

dismiss the petition because Petitioner’s claims are unexhausted. Petitioner has not filed a reply

to Respondent’s motion. For the reasons stated below, the Court will dismiss the petition

without prejudice so that Petitioner may return to state court to exhaust his claims.

I.

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Following his sentencing, Petitioner, through counsel, filed a delayed application for

leave to appeal with the Michigan Court of Appeals, alleging that he is entitled to withdraw his

plea and that the sentencing court’s order requiring him to pay court costs and attorney fees

should be vacated.

On March 12, 2009, the Michigan Court of Appeals affirmed Petitioner’s convictions and

sentences, but remanded to the Wayne County circuit court for reconsideration of the order

requiring Petitioner to pay attorney fees. People v. Alexander, No. 280990, 2009 WL 638199

(Mich.Ct.App. Mar. 12, 2009). To date, there is no indication in the pleadings that the Wayne

County circuit court has acted on the remand. Additionally, in reviewing the Michigan Supreme

Court’s website, it does not appear that Petitioner filed an application for leave to appeal, nor is

there any indication that Petitioner filed a post-conviction motion with the state trial court. 

Rather, while his direct appeal was pending in the Michigan Court of Appeals, on October 22,

2008, Petitioner filed the pending petition for a writ of habeas corpus. In his pro se pleadings, it

appears that Petitioner is attempting to raise the same claims as raised in the Michigan Court of

Appeals in his habeas petition. In his motion to dismiss, Respondent argues that Petitioner’s

claims for habeas-corpus relief are unexhausted. The Court agrees.

II.

A prisoner confined pursuant to a Michigan conviction must raise each habeas issue in

both the Michigan Court of Appeals and in the Michigan Supreme Court before seeking federalhabeas-corpus relief. Welch v. Burke, 49 F.Supp.2d 992, 998 (E.D. Mich. 1999). Therefore, a

prisoner filing a petition for a writ of habeas corpus under 28 U.S.C. § 2254 must first exhaust

all state-court remedies. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Rust v. Zent, 17 F.3d

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155, 160 (6th Cir. 1994). The burden is on the petitioner to prove exhaustion. Rust, 17 F.3d at

160. Exhaustion requires that a petitioner provide the state courts with the opportunity to correct

any constitutional violations by invoking “one full round” of the state’s appellate-review

process. Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993). 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 an unreasonable application of, clearly

established Supreme Court precedent. See 28 U.S.C. § 2254(d).

Therefore, in this case, the state courts must first be given a fair opportunity to rule upon

Petitioner’s habeas claims before he can present those claims to this Court. Mohn v. Bock, 208

F.2d 796, 800 (E.D. Mich. 2002); see also Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir. 1990).

Otherwise, the Court cannot apply the 28 U.S.C. § 2254(d) standard.

The Sixth Circuit has identified four actions that a petitioner can take which are

significant to the determination of whether he has properly asserted both the factual and legal

bases for his or her claim, i.e., “fairly presented” that claim: (1) reliance upon federal cases

employing constitutional analysis; (2) reliance upon states cases employing federal constitutional

analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular

to allege a denial of a specific constitutional right; or (4) alleging facts well within the

mainstream of constitutional law. Whiting v. Burt, 395 F.3d 602, 612 (6th Cir. 2005). General

allegations of the denial of rights to a fair trial and due process do not fairly present claims that

federal constitutional rights were violated. Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006).

A prisoner who has not yet exhausted his or her state court remedies may file a 

“‘protective’ petition in federal court and ask[ ] the federal court to stay and [hold in abeyance]

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the federal habeas proceedings until state remedies are exhausted.” Pace v. DiGuglielmo, 544

U.S. 409, 416 (2005) (citing Rhines v. Weber, 544 U.S. 269 (2005)). A federal court may stay a

federal habeas petition and hold further proceedings in abeyance pending the resolution of state

court post-conviction proceedings, provided there is “good cause” for failure to exhaust the

claims and that the unexhausted claims are not “plainly meritless,” and may close the case

administratively. Rhines, 544 U.S. at 278.

The Michigan Court Rules provide a process through which Petitioner may raise his

unexhausted claims. First, before Petitioner files his habeas petition, he can file an application

for leave to appeal the Court of Appeals’ decision with the Michigan Supreme Court. He is also

entitled to file a writ of certiorari with the United States Supreme Court, if he wishes to do so. 

Second, Petitioner can file a motion for relief from judgment pursuant to Mich. Ct. R. 6.500 et.

seq., which allows the trial court to appoint counsel, seek a response from the prosecutor, expand

the record, permit oral argument and conduct an evidentiary hearing on Petitioner’s claim. 

Petitioner may appeal the trial court’s disposition of his motion for relief from judgment to the

Michigan Court of Appeals and Michigan Supreme Court. Petitioner’s unexhausted claims

should be addressed to, and considered by, the state courts in the first instance so the state courts

will have an opportunity to decide those issues.

Accordingly, the Court will dismiss the petition without prejudice for failure to exhaust

state-court remedies. Petitioner may move to reopen this matter upon exhausting his state-court

remedies.

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III.

Accordingly, 

IT IS ORDERED that Respondent’s Motion to Dismiss is GRANTED [dkt. # 9] and the

petition for a writ of habeas corpus is DISMISSED WITHOUT PREJUDICE [dkt. # 1]. The

Clerk of the Court is ordered to CLOSE this case for statistical purposes only. Nothing in this

order or in the related docket entry shall be considered a disposition of Petitioner’s claims. 

S/Arthur J. Tarnow 

Arthur J. Tarnow

United States District Judge

Dated: June 23, 2009

I hereby certify that a copy of the foregoing document was served upon counsel of record on June 23, 2009, by

electronic and/or ordinary mail.

S/Catherine A. Pickles 

Judicial Secretary

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