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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DONALD BLISS,

Petitioner,

CASE NO. 2:09-CV-11064

v. HONORABLE DENISE PAGE HOOD

NICK LUDWICK,

Respondent.

____________________________________/

OPINION AND ORDER DISMISSING WITHOUT PREJUDICE

THE PETITION FOR WRIT OF HABEAS CORPUS

I. Introduction

This is a habeas action brought pursuant to 28 U.S.C. § 2254. Petitioner Donald Bliss, a state

prisoner currently confined at the St. Louis Correctional Facility in St. Louis, Michigan, asserts that

he is being held in violation of his constitutional rights. Petitioner raises claims concerning his

sentence and the effectiveness of trial and appellate counsel in his habeas petition. For the reasons

stated herein, the Court concludes that Petitioner has not fully exhausted his state court remedies and

dismisses without prejudice the petition for writ of habeas corpus.

II. Facts and Procedural History

Petitioner pleaded guilty to second-degree home invasion and possession of firearm during

the commission of a felony in the Tuscola County Circuit Court. He was sentenced as a fourth

habitual offender to consecutive terms of 14 years three months to 30 years imprisonment and two

years imprisonment on those convictions in 2007.

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Following his convictions and sentence, Petitioner filed a delayed application for leave to

appeal with the Michigan Court of Appeals asserting that the trial court imposed a minimum

sentence that exceeds the properly scored guidelines without citing substantial and compelling

reasons. See Pet., p. 2. The Michigan Court of Appeals denied leave to appeal for lack of merit in

the grounds presented. People v. Bliss, No. 286737 (Mich. Ct. App. Aug. 25, 2008) (unpublished).

Petitioner then filed an application for leave to appeal with the Michigan Supreme Court raising the

same sentencing claim presented to the Michigan Court of Appeals, as well as a claim that trial

counsel was ineffective for not challenging the charges of first-degree home invasion, larceny in a

building, and larceny of a firearm and for not informing him that the charges could not stand and that

the reduction of the charges to second-degree home invasion and felony firearm was insufficient.

See Pet., p. 2. The Michigan Supreme Court denied leave to appeal in a standard order. People v.

Bliss, 482 Mich. 1071, 757 N.W.2d 459 (Nov. 25, 2008).

Petitioner dated his federal habeas petition on March 16, 2009 and the case was filed by the

Court on March 20, 2009. In his petition, he raises the following claims:

I. The trial court imposed a minimum sentence that exceeds the properly scored

guidelines without citing substantial and compelling reasons.

II. The court must re-sentence him because his trial counsel and appellate

counsel rendered ineffective assistance for not challenging the charges of

first-degree home invasion, larceny in a building, larceny of a firearm, and

the felony firearm counts. Trial counsel never informed him that the charges

against him could not stand.

III. 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 opportunity to resolve any constitutional issues by invoking one

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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 present 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. First,

he admits that he did not present his second habeas claim concerning the effectiveness of trial

counsel to the Michigan Court of Appeals and first raised that claim before the Michigan Supreme

Court. His presentation of that claim to the Michigan Supreme Court on discretionary review does

not satisfy the exhaustion requirement. See Castille v. Peoples, 489 U.S. 346, 349-51 (1989).

Second, it appears that he did not present the portion of his second habeas claim concerning the

effectiveness of appellate counsel to any of the state courts. Petitioner has thus failed to properly

exhaust all of his habeas claims in the Michigan courts.

Generally, a federal district court should dismiss a “mixed” petition for writ of habeas

corpus, that is, one containing both exhausted and unexhausted claims, “leaving the prisoner with

the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas

petition to present only exhausted claims to the district court.” Rose v. Lundy, 455 U.S. 509, 510

(1982);see also Rust, 17 F.3d at 160. While the exhaustion requirement is strictly enforced, it is not

a jurisdictional prerequisite for bringing a habeas petition. See Granberry v. Greer, 481 U.S. 129,

134-35 (1987). For example, an unexhausted claim may be addressed if pursuit of a state court

remedy would be futile, see Witzke v. Withrow, 702 F. Supp. 1338, 1348-49 (W.D. Mich. 1988), or

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if the unexhausted claim is meritless such that addressing it would be efficient and not offend

federal-state comity. See Prather v. Rees, 822 F.2d 1418, 1422 (6th Cir. 1987); see also 28 U.S.C.

§ 2254(b)(2) (habeas petition may be denied on the merits despite the failure to exhaust state court

remedies). Additionally, a federal district court has discretion to stay a mixed habeas petition to

allow a petitioner to present his unexhausted claims to the state courts in the first instance and then

return to federal court on his perfected petition. See Rhines v. Weber, 544 U.S. 269, 276 (2005).

Stay and abeyance is available only in “limited circumstances” such as when the one-year statute

of limitations applicable to federal habeas actions poses a concern, and when the petitioner

demonstrates “good cause” for the failure to exhaust state court remedies before proceeding in

federal court and the unexhausted claims are not “plainly meritless.” Id. at 277.

Petitioner has available remedies in the Michigan courts which must be exhausted before

proceeding in federal court. 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 unexhausted issues in

the state appellate courts as necessary. See M.C.R. 6.500 et seq. 

Additionally, the one-year statute of limitations, see 28 U.S.C. § 2244(d), does not pose a

problem for Petitioner as long as he pursues his state court remedies in a prompt fashion. The oneyear limitations period did not begin to run until 90 days after the conclusion of his direct appeals,

see Bronaugh v. Ohio, 235 F.3d 280, 285 (6th Cir. 2000), on or about February 23, 2009. The oneyear period will also be tolled during the time in which any properly filed state post-conviction or

collateral actions are pending. See 28 U.S.C. § 2244(d)(2); see also Carey v. Saffold, 536 U.S. 214,

219-221 (2002). While the time in which his habeas case has been pending in federal court is not

statutorily tolled, see Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that a federal habeas

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petition is not an “application for State post-conviction or other collateral review” within the

meaning of 28 U.S.C. § 2244(d)(2) so as to statutorily toll the limitations period), such time is

equitably tolled by the Court. See, e.g., Johnson v. Warren, 344 F. Supp. 2d 1081, 1088-89 (E.D.

Mich. 2004). Given that the nearly ten and a half (10 and 1⁄2) months of the limitations period

remains, Petitioner has sufficient time in which to fully exhaust his issues in the state courts and

return to federal court should he wish to do so. A stay is unnecessary.

Petitioner has also not shown good cause for failing to properly and fully exhaust his claims

in the state courts, i.e., by filing a motion for relief for judgment, before proceeding in federal court

on habeas review. Moreover, his unexhausted claims appear to concern matters of federal law which

may warrant further review. His unexhausted claims should therefore be addressed to, and

considered by, the state courts in the first instance.

Federal 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 unexhausted ineffective

assistance of counsel claims, 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 all of Petitioner’s

claims before he litigates those claims in this Court. Otherwise, the Court is unable to apply the

standard found at 28 U.S.C. § 2254.

IV. 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

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writ of habeas corpus. Should Petitioner wish to delete the unexhausted claims and proceed only

on the fully exhausted claim, he may move to re-open this case and amend his petition to proceed

on the exhausted claim within thirty (30) days of the filing date of this order. The Court makes no

determination as to the merits of Petitioner’s claims.

IT IS SO ORDERED.

s/Denise Page Hood

Denise Page Hood

United States District Judge

Dated: April 30, 2009

I hereby certify that a copy of the foregoing document was served upon Donald Bliss, Reg.

No. 242015, 8585 N. Croswell Rd., St. Louis, MI 48880 and counsel of record on April 30, 2009,

by electronic and/or ordinary mail.

s/William F. Lewis 

Case Manager

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