UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

LESLIE MCGINNIS,

Petitioner,

v.

MICHAEL CURLEY,

Respondent. 

___________________/ 

Civil Action No. 09-CV-11292

HON. BERNARD A. FRIEDMAN

OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY

Petitioner Leslie McGinnis has filed a pro se petition for a writ of habeas

corpus under 28 U.S.C. § 2254. Petitioner is currently released on parole. At the time he

filed his petition, he was incarcerated at the Ojibway Correctional Facility in Marenisco,

Michigan. Petitioner challenges his plea-based conviction for unarmed robbery for which

he was sentenced to two to 15 years in prison. He presents 15 claims for relief. For the

reasons stated below, the court concludes that the petition contains unexhausted claims and

that it must therefore be dismissed without prejudice. The court also declines to issue a

certificate of appealability.

Following petitioner’s conviction and sentencing in Wayne County Circuit

Court, he filed a delayed application for leave to appeal in the Michigan Court of Appeals,

raining the following claims:

I. The trial court abused its discretion in failing to grant

defendant’s motion to quash when there was a missing

2:09-cv-11292-BAF-RSW Doc # 7 Filed 04/11/11 Pg 1 of 9 Pg ID 579
1

 Petitioner’s claims are lengthy. As necessary, they are shortened here for clarity. 

2

element as to the robbery charge. 

II. Defendant was denied the protection of the Fourth

Amendment when the police officer, acting on a hunch

that the defendant was involved in a crime, pursued his

vehicle without probable cause or reasonable suspicion

and initiated a stop without defendant having committed

any traffic violation.

III. Defendant’s plea should be withdrawn as the factual

basis for the guilty plea was lacking for unarmed robbery

when defendant did not assault the victim.

The Michigan Court of Appeals denied leave to appeal. See People v. McGinnis, No. 289018

(Mich. Ct. App. Aug. 8, 2007). 

Petitioner filed an application for leave to appeal in the Michigan Supreme

Court. He raised the same claims as were raised in the Michigan Court of Appeals and also

six additional claims. The Michigan Supreme Court denied leave to appeal. See People v.

McGinnis, 480 Mich. 1009 (2008).

Petitioner then filed the pending petition for a writ of habeas corpus. He raises

the following 15 claims:1

I. Was Petitioner, contrary to, or as an unreasonable

application of U.S. Supreme Court precedent denied his

constitutional right to counsel at critical stages of the

proceedings?

II. Was Petitioner’s plea contrary to, or an unreasonable

application of Supreme Court precedent and therefore,

“illusory and invalid”? Further, did Judge Thomas act

contrary to, or unreasonably apply Supreme Court

2:09-cv-11292-BAF-RSW Doc # 7 Filed 04/11/11 Pg 2 of 9 Pg ID 580
3

precedent by accepting Petitioner’s “illusory” plea?

III. Did attorney Harris deny Petitioner effective assistance

by advising him to accept such an “illusory” plea because

he did not have a firm command of the law governing the

plea?

IV. Did Judge Thomas, due to her arbitrary insistence for

expeditiousness even in the face of Petitioner’s repeated

and justifiable requests for a delay for the appointment of

new counsel act contrary to, or unreasonably apply U.S.

Supreme Court precedent by bartering Petitioner’s right

to a speedy trial against his right to counsel, thereby

denying him counsel and making his waiver of counsel

and his associated trial rights involuntary? Further, was

attorney Harris also ineffective as he failed to object to

and litigate such a claim . . . ?

V. Did attorney Harris fail to investigate and deny Petitioner

effective assistance of counsel and “coerce” his plea by

advising Petitioner that invoking his constitutional right

to a jury trial would result in a harsher sentence? 

VI. Was there insufficient evidence for probable cause to

believe (1) Petitioner committed the charged robbery; (2)

he assaulted complainant; and (3) that he was armed at

the time of the robbery; because the state/police. . . failed

to honor their legal/constitutional duty to present all the

material evidence, or the whole of the res gestae to the

court (& defense)? And, did the state also present the

false/perjured testimony. . .? . . . And did judges Gerou,

McDonald and Deborah Thomas also act contrary to, or

unreasonably apply Supreme Court precedent by

charging, issuing a warrant, binding over and trying

Petitioner respectively, based on such insufficient

evidence? . . . And, did attorney Harris deny Petitioner

effective assistance due to his failure to investigate, his

inadequate knowledge and research of the law, making

his trial strategies and advice to Petitioner unsound?

VII. Did the prosecutor, Judges Gerou, McDonald and

2:09-cv-11292-BAF-RSW Doc # 7 Filed 04/11/11 Pg 3 of 9 Pg ID 581
4

Deborah Thomas act contrary to, or unreasonably apply

Supreme Court precedent by charging, issuing a warrant,

binding over and trying Petitioner for armed robbery

when Officer Traylor’s own testimony was the

uncontroverted physical evidence that not only proved

that he lacked probable cause to search and seize

Petitioner, but also established an irrefutable alibi for

Petitioner for the time of the robbery? Further, did

attorney Harris deny Petitioner effective assistance of

counsel? 

VIII. Did the trial court fail to fulfill the mandatory provisions

of MCR 6.302(X)(3), requiring explanation for the

condition on which a plea may be withdrawn, and result

in a decision contrary to, or as an unreasonable

application of clearly established federal law as

determined by the U.S. Supreme Court? Further, was

Petitioner denied the effective assistance of appellate

counsel by attorney Ambrose who failed to raise such a

claim on appeal? 

IX. Did the trial court (Judge Thomas) violate MCR

6.302(A) & (E) depriving Petitioner’s plea of the

voluntary and knowing elements and the requisite

affirmative record thereof required by Boykin and Brady

by failing to ask the prosecutor and Petitioner’s own

attorney whether either was aware of any promises,

threats or inducements other than those already disclosed

on the record, before accepting Petitioner’s plea (or any

time after the plea as well)? 

X. Was Petitioner denied the effective assistance of trial

counsel(s), due process of law and other substantial

constitutional rights as listed herein, and did the state

appellate courts act contrary to, or unreasonably apply

Supreme Court precedent when they denied Petitioner’s

state court appeals.

XI. Was Petitioner subjected to ineffective assistance of

counsel by his trial and appellate attorneys as they failed

to properly/adequately cross examine key state witnesses

2:09-cv-11292-BAF-RSW Doc # 7 Filed 04/11/11 Pg 4 of 9 Pg ID 582
5

at trial in regards to the fact that Petitioner was never

identified by the complainant as the robber, or in regards

to an alibi defense that was established by the arresting

officer’s own testimony, and therefore there was no

probable cause to initially arrest Petitioner, and Petitioner

was therefore prejudiced by his attorney’s failures to

cross-examine key state witnesses on such issues?

Further, was Petitioner also therefore denied his right to

effective representation . . . and his right to confront his

accusers . . .? Were Petitioner’s 6th Amendment

confrontation clause rights also violated when the police

officers Traylor and Torolski testified as to the identity

of the Petitioner while the complainant has never

identified Petitioner as the robber, and his attorneys

never challenged such statements by key state witnesses?

Further does such evidence also conclusively prove

Petitioner’s actual innocence?

XII. Did the state . . . deprive Petitioner of his constitutional

right to the benefit of the presumption of innocence by

failing to present all the material evidence, or the whole

of the res gestae, and therefore did the state throw upon

Petitioner the burden of proving his innocence in

violation of his right to be presumed innocent until

proven guilty by the state/prosecution, and which also

denied him his rights to due process, a fair trial, and was

Petitioner also therefore denied effective assistance of

counsel by attorney Harris who failed . . . to present and

litigate such a claim, making his trial strategies and his

advice to Petitioner to accept a plea also unsound? 

XIII. Was Petitioner constructively denied representation of

counsel . . . when counsel was assigned 8 days before

Petitioner attended a hearing at which he was forced to

be arraigned on the information while he had not had any

previous opportunity to meet with counsel at all or to

have his case investigated by counsel or her

substitute/associate, and counsel did not meet with

Petitioner until day of hearing, when they conversed for

only about 5-10 minutes in the bull-pen and counsel was

forced to review options in crowded and noisy room with

2:09-cv-11292-BAF-RSW Doc # 7 Filed 04/11/11 Pg 5 of 9 Pg ID 583
6

no privacy.?

XIV. Was Attorney Harris ineffective due to his failure to

question officer Traylor about Petitioner’s potential alibi

defense; . . . and because he did not make any attempt to

investigate officer Traylor’s testimony and a potential

alibi defense, even after being made aware of the same

by Petitioner, and did also not make a reasoned

professional judgment that . . . investigation was not

necessary, violated the USCA Const. Amend. 6?

XV. Was it gross error for trial and appellate counsel to fail to

assert an obvious prosecutorial Brady violation claim?

And, did counsel’s failure to legitimately meet with,

listen to, consult with and investigate Petitioner’s case

cause trial and appellate counsel to be unaware of such a

violation? And, were the resulting prejudicial

repercussions to Petitioner objectively unreasonable, and

therefore did they (Attorneys Harris & Ambrose) render

ineffective assistance constituting cause to excuse any

procedural error/default by Petitioner?

Respondent argues that the petition should be dismissed because it contains

unexhausted claims. A federal court may not grant habeas corpus relief to a state prisoner

unless the prisoner first exhausts his remedies in state court. See O’Sullivan v. Boerckel, 526

U.S. 838, 842 (1999). “Ordinarily, the state courts must have had the opportunity to pass on

defendant’s claims of constitutional violations.” Prather v. Rees, 822 F.2d 1418 (6th Cir.

1987). “This rule of comity reduces friction between the state and federal court systems by

avoiding the unseemliness of a federal district court’s overturning a state court conviction

without the state courts having had an opportunity to correct the constitutional violation in

the first instance.” O’Sullivan, 526 U.S. at 845 (internal quotation omitted). Each issue must

2:09-cv-11292-BAF-RSW Doc # 7 Filed 04/11/11 Pg 6 of 9 Pg ID 584
7

be presented to both the Michigan Court of Appeals and the Michigan Supreme Court to

satisfy the exhaustion requirement. See Hafley v. Sowders, 902 F.2d 480, 483 (6th Cir.

1990), Welch v. Burke, 49 F. Supp.2d 992, 998 (E.D. Mich. 1999). The petitioner bears the

burden of establishing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994).

In the present case, petitioner has exhausted only the three claims he presented

to the Michigan Court of Appeals and the Michigan Supreme Court. His remaining claims

were either presented for the first time in his application for leave to appeal to the Michigan

Supreme Court or were not presented to any state court. A defendant has failed to “fairly

present” an issue when it is raised for the first time when review is discretionary. Castille

v. Peoples, 489 U.S. 346, 351 (1989). An issue is not fairly presented when it is raised for

the first time to the Michigan Supreme Court, and that court declines to exercise its right to

discretionary review. See Farley v. Lafler, 193 F.App’x 543, 549 (6th Cir. 2006).

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

of habeas corpus, that is, one containing both exhausted and unexhausted claims. See Rose

v. Lundy, 455 U.S. 509, 510 (1982); Rust, 17 F.3d at 160. However, 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

2:09-cv-11292-BAF-RSW Doc # 7 Filed 04/11/11 Pg 7 of 9 Pg ID 585
8

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. He may file a motion for relief from judgment

pursuant to Michigan Court Rule 6.500 with the state trial court and pursue his unexhausted

issues in the state appellate courts as necessary. While the time a habeas case is pending in

federal court is not statutorily tolled, see Duncan v. Walker, 533 U.S. 167, 181-82 (2001),

such time is equitably tolled by the Court so long as petitioner diligently pursues his rights

in state court. See Holland v. Florida, 130 S. Ct. 2549, 2562 (2010). Additionally, the

one-year period will 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); Carey v.

Saffold, 536 U.S. 214, 219-221 (2002). Therefore, dismissal of this petition will not

jeopardize the timeliness of a future petition. 

Further, petitioner has not shown good cause for failing to exhaust his claims

in the state courts before proceeding in federal court on habeas review. At least one of his

unexhausted claims appears 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 Rule of Appellate Procedure 22 provides that an appeal may not

proceed unless a certificate of appealability (COA) is issued under 28 U.S.C. § 2253. Rule

11 of the Rules Governing Section 2254 Proceedings requires that the court “must issue or

deny a certificate of appealability when it enters a final order adverse to the applicant.” A

2:09-cv-11292-BAF-RSW Doc # 7 Filed 04/11/11 Pg 8 of 9 Pg ID 586
9

COA 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). A petitioner must show “that reasonable

jurists could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation

omitted). In the present case, reasonable jurists would not debate the court’s conclusion that

the petition should be dismissed without prejudice for the reasons indicated above.

Therefore, the court declines to issue a certificate of appealability.

For the reasons indicated above,

IT IS ORDERED that the petition in this matter is dismissed without prejudice.

IT IS FURTHER ORDERED that no certificate of appealability shall issue.

 S/Bernard A. Friedman 

Dated: April 11, 2011 BERNARD A. FRIEDMAN

Detroit, Michigan SENIOR UNITED STATES DISTRICT JUDGE

2:09-cv-11292-BAF-RSW Doc # 7 Filed 04/11/11 Pg 9 of 9 Pg ID 587