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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BOBBY WILLIAMS,

Petitioner,

CASE NO. 09-CV-13061 

v. HONORABLE VICTORIA A. ROBERTS

ERICK BALCARCEL,

Respondent.

 /

OPINION AND ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

AND DENYING A CERTIFICATE OF APPEALABILITY AND

LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Bobby

Williams (“Petitioner”) is challenging his convictions for first-degree murder and possession of a

firearm during the commission of a felony which were imposed following a jury trial in the

Wayne County Circuit Court in 2003. Petitioner was sentenced to consecutive terms of life

imprisonment without the possibility of parole and two years imprisonment. For the reasons

stated, the Court dismisses without prejudice the petition for writ of habeas corpus. The Court

also denies a certificate of appealability and leave to proceed on appeal in forma pauperis.

II. 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 fair opportunity to resolve any constitutional issues

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by invoking one complete round of the State’s established appellate review process”); Rust v.

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

Rust, 17 F.3d at 160.

In this case, Petitioner states that he has a motion for DNA testing of biological evidence

pending in the Wayne County Circuit Court concerning the challenged convictions. Petitioner

must complete the state court process before seeking habeas relief in federal court. See Witzke v.

Bell, No. 07-CV-15315, 2007 WL 4557674 (E.D. Mich. Dec. 20, 2007); Harris v. Prelisnik, No.

06-CV-15472, 2006 WL 3759945 (E.D. Mich. Dec. 20, 2006). 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 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). 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. Otherwise, the Court cannot

apply the standard found at 28 U.S.C. § 2254. Even if Petitioner’s pending motion does not

concern his current claims, that proceeding may result in the reversal of his convictions on

another ground, thereby mooting the federal questions presented. See Humphrey v. Scutt, No.

08-CV-14605, 2008 WL 4858091, *1 (E.D. Mich. Nov. 5, 2008) (citing Sherwood v. Tomkins,

716 F.2d 632, 634 (9th Cir.1983), and Woods v. Gilmore, 26 F. Supp. 2d 1093, 1095 (C.D. Ill.

1998)); see also Szymanski v. Martin, 99-CV-76196-DT, 2000 WL 654916 (E.D. Mich. April 13,

2000). Non-prejudicial dismissal of the petition is warranted under such circumstances.

III. Conclusion

For the reasons stated, the Court concludes that Petitioner has a matter pending in the

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state courts concerning the convictions at issue in this case. Accordingly, the Court

DISMISSES WITHOUT PREJUDICE the petition for writ of habeas corpus. The Court

makes no determination as to the merits of Petitioner’s claims.

Before Petitioner may appeal this Court’s dispositive decision, a certificate of

appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of

appealability may issue “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When a federal district court denies a habeas

claim on procedural grounds without addressing the claim’s merits, a certificate of appealability

should issue if it is shown that jurists of reason would find it debatable whether the petitioner

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. See Slack v. McDaniel,

529 U.S. 473, 484-85 (2000).

Having considered the matter, the Court concludes that reasonable jurists could not

debate whether the Court was correct in its procedural ruling. Accordingly, the Court DENIES

a certificate of appealability. The Court further DENIES Petitioner leave to proceed on appeal

in forma pauperis as any appeal would be frivolous. See Fed. R. App. P. 24(a).

SO ORDERED.

S/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: August 10, 2009

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The undersigned certifies that a copy of this

document was served on the attorneys of record

and Bobby Williams by electronic means or U.S.

Mail on August 10, 2009.

s/Carol A. Pinegar 

Deputy Clerk

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