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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TERENCE ALVIN JOHNSON,

Petitioner, Civil No. 2:09-CV-10395

HONORABLE GERALD E. ROSEN

v. CHIEF UNITED STATES DISTRICT JUDGE

SHIRLEY HARRY,

Respondent,

_________________________________/

OPINION AND ORDER DENYING THE MOTION FOR INVESTIGATIVE ASSISTANCE

On March 6, 2009, this Court held petitioner’s habeas application in abeyance

and administratively closed the case, in order to allow petitioner to return to the state

courts to exhaust additional claims that had not been presented to the state courts.

Johnson v. Harry, No. 2009 WL 596130 (E.D. Mich. March 6, 2009). Petitioner has now

filed a motion for investigative assistance. For the reasons stated below, the motion is

denied without prejudice.

The motion for investigative assistance is premature because petitioner has yet

to completely exhaust his state post-conviction remedies. Petitioner filed a postconviction motion for relief from judgment in the trial court, which was denied on July 14,

2009. Petitioner, however, has failed to appeal the denial of his post-conviction motion

to the Michigan Court of Appeals or the Michigan Supreme Court.

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

exhaust his available state court remedies before raising a claim in federal court. 28

U.S.C. § 2254(b) and (c). See Picard v. Connor, 404 U. S. 270, 275-78 (1971). Denial

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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. See Nasr v. Stegall, 978 F. Supp. 714, 717 (E.D.

Mich. 1997). A criminal defendant in Michigan has twelve months from the denial of a

motion for relief from judgment by the trial court to file an application for leave to appeal

with the Michigan Court of Appeals. M.C.R. 6.509 (A); M.C.R. 7.205(F)(3). Where a

habeas petitioner has an opportunity under state law to file an appeal following the state

trial court’s denial of his state post-conviction motion, the petitioner has failed to exhaust

his state court remedies. See Cox v. Cardwell, 464 F. 2d 639, 644-45 (6th Cir. 1972). 

Because petitioner has failed to appeal the denial of his post-conviction motion to

the Michigan Court of Appeals or to the Michigan Supreme Court, he has failed to

satisfy the exhaustion requirement. See e.g. Paffhousen v. Grayson, 238 F. 3d 423, No.

2000 WL 1888659, * 2 (6th Cir. December 19, 2000); Mohn v. Bock, 208 F. Supp. 2d

796, 800 (E.D. Mich. 2002). 

State collateral review proceedings are not matters which are considered

“ancillary” to § 2254 proceedings and are therefore not proceedings to which a federal

court may appoint an attorney, expert, or investigator to assist a state prisoner pursuant

to 18 U.S.C.A. § 3006A(c). See In re Lindsey, 875 F. 2d 1502, 1508 (11th Cir. 1989). A

habeas petitioner is not entitled to compensation for experts or investigators until all of

his claims have been exhausted in the state courts. See Patrick v. Johnson, 48 F. Supp.

2d 645, 646 (N.D. Tex. 1999). Because petitioner has yet to exhaust his claims in his

state post-conviction proceedings, he is not entitled to the appointment of an

investigator pursuant to 18 U.S.C.A. § 3006A(c). 

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Based on the foregoing, IT IS HEREBY ORDERED that the motion for

investigative assistance is DENIED WITHOUT PREJUDICE. 

s/Gerald E. Rosen 

Chief Judge, United States District Court

Dated: October 2, 2009

CERTIFICATE OF SERVICE

I hereby certify that on October 2, 2009 , I electronically filed the foregoing paper with the

Clerk of the Court using the ECF system which will send notification of such filing to the

following: Brad H. Beaver , and I hereby

certify that I have mailed by United States Postal Service the paper to the following non-ECF

participants:

 Terence Alvin Johnson, ##464914, Muskegon Correctional Facility, 2400 S.

Sheridan, Muskegon, MI 49442 .

s/Ruth A. Brissaud 

Ruth A. Brissaud, Case Manager

(313) 234-5137

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