UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANDRE BELL,

Petitioner,

v.

KENNETH ROMANOWSKI,

Respondent. 

/

Case Number: 5:09-CV-11079

HON. JOHN CORBETT O’MEARA

OPINION AND ORDER DENYING CERTIFICATE OF APPEALABILITY

Petitioner Andre Bell, a state inmate currently incarcerated at the Mound Correctional

Facility in Detroit, Michigan, filed a pro se petition for a writ of habeas corpus, pursuant to 28

U.S.C. § 2254. On April 17, 2009, the Court issued an Opinion and Order of Summary

Dismissal Without Prejudice, on the ground that Petitioner failed to exhaust his state court

remedies. Petitioner has filed a Notice of Appeal. Thus, the Court must determine whether

Petitioner is entitled to a certificate of appealability (COA). See Castro v. United States, 310

F.3d 900, 901-02 (6th Cir. 2002) (holding that “a district judge must issue or deny a COA if an

applicant files a notice of appeal” without awaiting the filing of an application for a certificate of

appealability). 

A certificate of appealability 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

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

McDaniel, 529 U.S. 473, 484 (2000). When a prisoner’s habeas corpus petition was denied on

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procedural grounds, a certificate of appealability “should issue . . . if the prisoner shows, at least,

that jurists of reason would find it debatable whether the petition 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.

The Court dismissed the petition because two of the claims presented were unexhausted. 

A habeas petitioner must “fairly present” his claims as federal constitutional issues in the state

courts before raising those claims in a federal habeas corpus petition. See 28 U.S.C. §

2254(b)(1)(A) and (c); O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999); McMeans v. Brigano,

228 F.3d 674, 681 (6th Cir. 2000); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). A prisoner

“‘fairly presents’ his claims to the state courts by citing a provision of the Constitution, federal

decisions using constitutional analysis, or state decisions employing constitutional analysis in

similar fact patterns.” Levine v. Torvik, 986 F.2d 1506, 1516 (6th Cir. 1993); see also Prather v.

Reese, 822 F.2d 1418, 1420 (holding that “[o]rdinarily, the state courts must have had the

opportunity to pass on defendant’s claims of constitutional violations”). A Michigan petitioner

must present each ground to both Michigan appellate courts before seeking federal habeas

corpus relief. See 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). 

In this case, Petitioner presented his unexhausted claims for the first time in his

application for leave to appeal to the Michigan Supreme Court. Where a claim is presented for

the first time to a state court on discretionary review, that does not constitute a “fair

presentation” of the claim. Castille v. Peoples, 489 U.S. 346, 351 (1989). Thus, the Court held

that Petitioner failed to exhaust his state court remedies with respect to his second and third

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claims. Additionally, the Court held that the Michigan Court Rules provide a process through

which Petitioner may raise his unexhausted claims, the filing of a motion for relief from

judgment pursuant to Mich. Ct. R. 6.500 et seq. The Court dismissed the petition without

prejudice so that Petitioner could pursue exhaustion of his state court remedies.

This Court holds that jurists of reason would not find the conclusion that two of the

claims presented in the habeas petition were unexhausted to be debatable or wrong. See Slack,

529 U.S. at 484. Therefore, Petitioner has failed to show that he is entitled to a certificate of

appealability. 

Accordingly, IT IS ORDERED that a certificate of appealability is DENIED. 

s/John Corbett O’Meara

United States District Judge

Date: July 21, 2009

I hereby certify that a copy of the foregoing document was mailed to the parties of record on this

date, July 21, 2009, by electronic and/or ordinary mail.

s/William Barkholz

Case Manager

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