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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JERRY COLEMAN,

Petitioner,

CASE NO. 2:09-CV-13528

v. HONORABLE MARIANNE O. BATTANI

CINDI CURTIN,

Respondent.

____________________________________/

OPINION AND ORDER DISMISSING WITHOUT PREJUDICE

THE PETITION FOR WRIT OF HABEAS CORPUS

I. Introduction

This is a habeas case brought pursuant to 28 U.S.C. § 2254. Petitioner Jerry Coleman, a

state prisoner currently confined at the Oaks Correctional Facility in Manistee, Michigan, asserts

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

the scoring of the sentencing guidelines, the effectiveness of trial counsel, the voluntariness of

his plea, and his due process rights 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 assault with intent to rob and possession of firearm during the

commission of a felony, second offense, in the Wayne County Circuit Court and was sentenced

to consecutive terms of 13 to 25 years imprisonment and five years imprisonment on those

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convictions in 2007.

Following sentencing, Petitioner filed an application for leave to appeal with the

Michigan Court of Appeals challenging the scoring of the sentencing guidelines and the

accuracy of the pre-sentence report. The Michigan Court of Appeals denied leave to appeal for

lack of merit in the grounds presented. People v. Coleman, No. 283882 (Mich. Ct. App. March

26, 2008) (unpublished). Petitioner then filed an application for leave to appeal with the

Michigan Supreme Court apparently raising the same sentencing claim. The Michigan Supreme

Court denied leave to appeal in a standard order. People v. Coleman, 482 Mich. 989, 755

N.W.2d 640 (Sept. 22, 2008).

Petitioner dated his federal habeas petition on August 31, 2009. In his petition, he raises

the following claims:

I. His due process rights were violated when he was scored on inaccurate

information where OV12 (other felonious acts) and OV19 (interference

with administration of justice) were mis-scored.

II. Trial counsel was ineffective for failing to challenge the scoring of the

offense variables and failing to investigate his case.

III. His plea was involuntary and the result of fraud, duress, mis-information,

and confusion.

IV. His due process rights were violated where his gun and assault charges

were never challenged, counsel deliberately refused to file any motions

and investigate his case, and he accepted the plea under duress and

confusion.

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 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). 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. 

He admits that he has not presented his second, third and fourth habeas claims concerning the

effectiveness of counsel, the voluntariness of his plea, and his due process rights to the Michigan

courts on direct appeal of his convictions. 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 amending and 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

(W.D. Mich. 1988), or 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.

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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.

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

one-year 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 December 21,

2008. The one-year 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 petition is not an “application for State post-conviction or

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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 nearly four 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. His assertion that appellate counsel refused to raise the issues on

direct appeal, while potentially cause to excuse that failure, does not justify his failure to pursue

state collateral review before seeking relief from this Court. Moreover, Petitioner’s 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.

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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 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 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/Marianne O. Battani__________________

MARIANNE O. BATTANI

UNITED STATES DISTRICT JUDGE

Dated: September 15, 2009

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

September 15, 2009 by electronic and/or ordinary mail.

s/Deborah J. Goltz

Deputy Clerk

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