Smith v. Jackson

ROBERT ANTHONY SMITH, Petitioner, v. SHANE JACKSON, Respondent.

4:16-CV-13475-TGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

April 30, 2020

OPINION AND ORDER DISMISSING WITHOUT PREJUDICE THE PETITION FOR WRIT OF HABEAS CORPUS, DENYING PETITIONER'S PENDING MOTIONS, DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, AND GRANTING LEAVE TO APPEAL IN FORMA PAUPERIS

Robert Anthony Smith, ("Petitioner"), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for assault with intent to commit murder, first-degree home invasion, unlawful imprisonment, intentional discharge of a firearm from a motor vehicle, two counts of carrying a weapon with unlawful intent, two counts of felon in possession of a firearm, two counts of felony-firearm, and assault with intent to commit great bodily harm.

For the reasons that follow, the petition is dismissed without prejudice because it contains claims that have yet to be exhausted with the state courts.

I. Background

Petitioner was convicted by a jury in the Wayne County Circuit Court. Petitioner then filed an appeal of right. The Michigan Court of Appeals affirmed his conviction and sentence. People v. Smith, No. 316224, 2015 WL 1119716 (Mich. Ct. App. Mar. 12, 2015).

Petitioner filed an application for leave to appeal to the Michigan Supreme Court. The Michigan Supreme Court, in lieu of granting leave to appeal, remanded the matter to the trial judge to determine whether the court would have imposed a materially different sentence under the sentencing procedure described in People v. Lockridge, 498 Mich. 358, 870 N.W.2d 502 (2015). People v. Smith, 499 Mich. 898, 876 N.W.2d 825 (2016).

On remand, the trial judge denied Petitioner's motion for re-sentencing, on the ground that Lockridge could not to be applied retroactively to Petitioner's original sentence. People v. Smith, No. 12-009631 (Third Cir.Ct., June 8, 2016) (ECF No. 13-17, PageID.1522-23).

On September 19, 2016, Petitioner filed a petition for writ of habeas corpus, seeking habeas relief on the grounds that he raised in his original appeal.

On January 13, 2017, this Court granted Petitioner's motion to stay the proceedings pending his re-sentencing in the state courts. Smith v. Jackson, No. 16-13475, 2017 WL 132687 (E.D. Mich. Jan. 13, 2017).

Petitioner appealed the trial judge's refusal to re-sentence him as directed by the Michigan Supreme Court in their original order. The Michigan Court of Appeals vacated the judge's order denying the motion for re-sentencing and remanded the matter back to the trial court for the judge to reconsider its sentence in light of the Michigan Supreme Court's earlier directive to the trial court. People v. Smith, No. 335797 (Mich.Ct.App. Mar. 29, 2017) (ECF No. 13-23, Page ID.2345).

Petitioner also filed a motion for a new trial, which the judge re-characterized as a post-conviction motion for relief from judgment and denied pursuant to M.C.R. 6.508(D)(3). People v. Smith, No. 12-009631 (Third Cir.Ct., Feb. 22, 2018)(ECF No. 13-19, PageID. 1708-15).

Petitioner has yet to be re-sentenced by the trial judge.

On September 12, 2019, this Court reopened the case to the Court's active docket. Petitioner has filed an amended petition for writ of habeas corpus (ECF No. 5) and a supplemental petition. (ECF No. 11). Respondent has filed an answer (ECF No. 12) and a supplemental answer. (ECF No. 20).

Petitioner seeks habeas relief on a total of ten grounds, which the Court summarizes: (1) Petitioner and his attorney were absent from a critical stage of the proceedings, namely, a hearing to determine whether Petitioner was competent to stand trial; Petitioner was not competent to stand trial, (2) Petitioner was denied a fair trial because of prosecutorial misconduct, (3) the evidence was insufficient to convict, (4) Petitioner wassentenced on the basis of inaccurate information, his sentencing guidelines were mis-scored, and he received untimely notice of the habitual offender sentencing enhancement, (5) Petitioner was denied the effective assistance of trial counsel, (6) Petitioner's Fourth Amendment rights were violated by the delay in arraignment, (7) the judge violated Petitioner's Sixth Amendment right to a jury trial by using factors that had not been proven beyond a reasonable doubt to score the sentencing guidelines, (8) the prosecution withheld exculpatory evidence, (9) Petitioner was denied the effective assistance of trial counsel, and (10) Petitioner's rights were denied when the judge or prosecutor failed to sequester certain witnesses. Petitioner may also be raising a claim that the state trial judge's delay in re-sentencing him violates his right to due process.

Respondent, in his two answers, argues that Petitioner's ninth and tenth claims are unexhausted because these claims were never presented to the state courts, and further argues that the claims are procedurally defaulted because Petitioner no longer has an available state court remedy with which to exhaust these claims.

II. Discussion

The petition is subject to dismissal because it contains claims that have yet to be exhausted with the state courts and for which an available state court remedy remains.

As a general rule, a state prisoner seeking federal habeas relief must first exhaust his or her 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). Federal district courts must dismiss mixed habeas petitions which contain both exhausted and unexhausted claims. See Pliler v. Ford, 542 U.S. 225, 230 (2004)(citing Rose v. Lundy, 455 U.S. 509, 510, 522 (1982)). A habeas petitioner has the burden of proving that he or she has exhausted his or her state court remedies. Sitto v. Bock, 207 F. Supp. 2d 668, 675 (E.D. Mich. 2002).

Petitioner's ninth and tenth claims are unexhausted because they have yet to be presented to the state courts. Although Petitioner did raise some ineffective assistance of trial counsel claims on his appeal of right—which are included in his fifth claim—the ineffective assistance of trial counsel claims that Petitioner raises in his ninth claim were never presented to the state courts.

The doctrine of exhaustion mandates that the same claim under the same theory be presented to the state courts before it can be raised in a federal habeas petition. Wong v. Money, 142 F. 3d 313, 322 (6th Cir. 1998). "Even the same claim, if raised on different grounds, is not exhausted for the purpose of federal habeas review." Rayner v. Mills, 685 F.3d 631, 643 (6th Cir. 2012).

A habeas petitioner is required to present to the state courts "the same specific claims of ineffective assistance [of counsel] made out in thehabeas petition." Wyldes v. Hundley, 69 F. 3d 247, 253 (8th Cir. 1995) (quoting Tippitt v. Lockhart, 903 F. 2d 552, 554 (8th Cir. 1990)). The ineffective assistance of counsel claims raised by Petitioner in his ninth claim are different than the ineffective assistance of counsel claims presented during Petitioner's direct appeals process and thus have not been fairly presented to the state courts. See Caver v. Straub, 349 F. 3d 340, 346-47 (6th Cir. 2003) (citing to Pillette v. Foltz, 824 F. 2d 494, 497 (6th Cir. 1987)); See also Brandon v. Stone, 226 F. App'x. 458, 459 (6th Cir. 2007).

Respondent argues that Petitioner's ninth and tenth claims are procedurally barred because they can no longer be exhausted in that M.C.R. 6.502(G)(1) permits a criminal defendant to only file one post-conviction motion for relief from judgment and Petitioner has already been denied post-conviction relief by the trial court. See Banks v. Jackson, 149 F. App'x. 414, 418 (6th Cir. 2005). The exhaustion doctrine, in the context of habeas cases, is dependent upon whether there are available state court procedures for a habeas petitioner to exhaust his or her claims. See Adams v. Holland, 330 F. 3d 398, 401 (6th Cir. 2003).

This Court disagrees with Respondent and believes Petitioner still has an available post-conviction remedy to exhaust his claims.

The Michigan Supreme Court ordered the trial judge to reconsider Petitioner's sentence in light of its holding in People v. Lockridge, supra. The trial judge initially refused to reconsider Petitioner's sentence,erroneously concluding that Lockridge should not be applied retroactively to Petitioner's case, even though the Michigan Supreme Court had already ordered the trial judge to reconsider Petitioner's sentence under Lockridge. And the Michigan Court of Appeals remanded this matter to the Wayne County Circuit Court to reconsider Petitioner's sentence. Significantly, the Michigan Court of Appeals noted that "contrary to the trial court's ruling, defendant's sentencing challenge was not a collateral attack, but was instead premised on an order entered during his direct appeal." People v. Smith, No. 335797 (Mich.Ct.App. Mar. 29, 2017) (ECF No. 13-23, Page ID.2345) (emphasis added).

Any post-conviction motion filed by Petitioner while his sentence remained under review would have been premature. Under Michigan Court Rule 6.508(D)(1) the trial judge could not have granted post-conviction relief to Petitioner because his "judgment of sentence was still subject to challenge on appeal...." Mich. Ct. R. 6.508(D)(1). Petitioner's motion for a new trial, even if it could be construed as a post-conviction motion, was prematurely filed pursuant to M.C.R. 6.508(D)(1). In light of the fact that Petitioner's motion for a new trial was filed before the judge has considered re-sentencing Petitioner, this Court cannot say with certainty that Petitioner would now be unable to file a post-conviction motion for relief from judgment to exhaust these new claims. See Ditrapani v. Trierweiler, No. 1:18-CV-356, 2018 WL 3081958, at * 3 (W.D. Mich. June 22, 2018) ("When it is uncertain whether the Michigan courtswill consider the petitioner...