Brown v. Braman

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY TYRONE BROWN,

Petitioner,

CASE NO. 2:21-CV-11330

v. HON. ARTHUR J. TARNOW

MELINDA BRAMAN,

Respondent.

______________________________/

OPINION AND ORDER DISMISSING WITHOUT PREJUDICE THE

HABEAS PETITION, DENYING THE ABEYANCE MOTION,

DENYING A CERTIFICATE OF APPEALABILITY, AND

DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

I. Introduction

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

prisoner Anthony Tyrone Brown (“Petitioner”) was convicted of two counts of first-

degree criminal sexual conduct and one count of third-degree criminal sexual conduct

following a jury trial in the Wayne County Circuit Court and was sentenced, as a

second habitual offender, to concurrent terms of 18 to 40 years imprisonment on the

first-degree convictions and 12½ to 22½ years imprisonment on the third-degree

convictions in 2017. In his pleadings, Petitioner raises claims concerning the denial

of substitute counsel and the trial judge’s refusal to disqualify himself. Petitioner has

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also filed a motion to hold the case in abeyance pending the conclusion of collateral

review in the state courts. For the reasons stated herein, the Court dismisses without

prejudice the habeas petition, denies the abeyance motion, denies a certificate of

appealability, and denies leave to proceed in forma pauperis on appeal.

II. Procedural History

Following his convictions and sentencing, Petitioner filed an appeal of right

with the Michigan Court of Appeals raising several claims of error, including those

raised on habeas review. The court denied relief on those claims and affirmed his

convictions. People v. Brown, No. 337223 (Mich. Ct. App. Sept. 13, 2018).

Petitioner filed an application for leave to appeal with the Michigan Supreme Court,

which was denied in a standard order. People v. Brown, 503 Mich. 1020, 925 N.W.2d

867 (April 30, 2019). The Michigan Supreme Court also denied reconsideration.

People v. Brown, 504 Mich. 950, 931 N.W.2d 359 (Sept. 29, 2019). Petitioner also

filed a petition for a writ of certiorari with the United States Supreme Court, which

was denied. Brown v. Michigan, _ U.S. _, 140 S. Ct. 840 (Jan. 13, 2020). The

Supreme Court also denied rehearing. Brown v. Michigan, _ U.S. _, 140 S. Ct. 2558

(March 23, 2020).

Petitioner states that he filed a motion for relief from judgment with the state

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trial court on July 15, 2020, which was denied on November 20, 2020. Pet., ECF No.

1, PageID.8. He then filed a delayed application for leave to appeal with the Michigan

Court of Appeals, along with various additional motions, all of which were denied.

Id.; see also People v. Brown, Nos. 355810, 356177 (Mich. Ct. App. April 28, 2021).

Petitioner indicates that he intends to pursue additional review in the Michigan

Supreme Court, id., and seeks to hold the case in abeyance pending that review and

decision. Abey Mot., ECF No. 3.

Petitioner appears to have submitted his federal habeas petition and abeyance

motion to prison officials for mailing on May 14, 2021 (the date on the mailing

envelope).

III. Discussion

Promptly after the filing of a habeas petition, the Court must undertake a

preliminary review of the petition to determine whether “it plainly appears from the

face of the petition and any exhibits annexed to it that the petitioner is not entitled to

relief in the district court.” Rule 4, Rules Governing § 2254 Cases; 28 U.S.C. § 2243.

If, after preliminary consideration, the Court determines that the petitioner is not

entitled to relief, the Court must summarily dismiss the petition. Id., Allen v. Perini,

424 F.2d 134, 141 (6th Cir. 1970) (district court has the duty to “screen out” petitions

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that lack merit on their face).

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 by invoking one complete round of the State's established

appellate review process”); Rust v. Zent, 17 F.3d 155, 160 (6th Cir. 1994). To satisfy

this requirement, the claims must be “fairly presented” to the state courts, meaning

that the prisoner must have asserted both the factual and legal bases for the claims in

the state courts. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); see also

Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans). The

claims must also be presented to the state courts as federal constitutional issues.

Koontz v. Glossa, 731 F.2d 365, 368 (6th Cir. 1984). A Michigan prisoner must

properly present each issue he seeks to raise in a federal habeas proceeding to both the

Michigan Court of Appeals and the Michigan Supreme Court to satisfy the exhaustion

requirement. 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). While the exhaustion

requirement is not jurisdictional, a “strong presumption” exists that a petitioner must

exhaust all available state remedies before seeking federal habeas review. Granberry

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v. Greer, 481 U.S. 129, 131, 134-35 (1987). The burden is on the petitioner to prove

exhaustion. Rust, 17 F.3d at 160.

In this case, it appears that Petitioner exhausted his current habeas claims on

direct appeal in the state courts, but he informs the Court that he has collateral review

proceedings pending in the state courts concerning his convictions. Petitioner seeks

to hold his habeas case in abeyance until those proceedings are concluded. Such

action, however, is unwarranted.

First, it is inappropriate for Petitioner to challenge the same criminal

convictions and sentences in state court and federal court at the same time. See, e.g.,

Carter v. Balcarcel, No. 3:18-CV-10618, 2018 WL 1586488, *2 (E.D. Mich. April

2, 2018) (dismissing habeas petition without prejudice where state prisoner had a

motion for relief from judgment pending in state court); Gilmore v. Burton, No. 16-

CV-14512, 2017 WL 2062222, *2 (E.D. Mich. May 15, 2017 (stating that “it is

inappropriate for the petitioner to challenge the same criminal convictions and

sentences in state court and federal court at the same time” and dismissing habeas

petition without prejudice where state prisoner had additional claims pending in state

court); Robinson v. Gidley, No. 2:15-CV-10572, 2015 WL 1120118, *2 (E.D. Mich.

March 11, 2015) (citing cases and dismissing habeas petition without prejudice where

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state prisoner had a pending state habeas action). Petitioner must complete the state

court process before seeking habeas relief in federal court. 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).

Additionally, while Petitioner’s pending state collateral review proceedings

may or may not involve his current habeas claims, those proceedings 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 cases); Szymanski v. Martin, 99-CV-76196-DT, 2000 WL

654916 (E.D. Mich. April 13, 2000). A non-prejudicial dismissal of the habeas

petition, rather than a stay and abeyance, is warranted under such circumstances.

Moreover, a stay and abeyance is unnecessary in this case. A federal district

court has discretion to stay a mixed habeas petition, containing both exhausted and

unexhausted claims, to allow a petitioner to present unexhausted claims to the state

courts and then return to federal court on a perfected petition. 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 poses a concern, and when the

petitioner demonstrates “good cause” for the failure to exhaust state remedies before

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proceeding in federal court, the petitioner has not engaged in intentionally dilatory

litigation tactics, and the unexhausted claims are not “plainly meritless.” Id. at 277.

In Rhines, the Supreme Court adopted the stay and abeyance procedure to specifically

address the situation when outright dismissal of a habeas petition could jeopardize the

timeliness of a future petition following the exhaustion of state remedies. Id. at 275

(noting that if the court dismissed the habeas petition “close to the end of the 1-year

period, the petitioner’s chances of exhausting his claims in state court and refiling in

federal court before the limitation period [expired would be] slim”). Thus, stay and

abeyance is generally reserved for those cases where the AEDPA’s one-year

limitations period is likely to expire before a habeas petitioner can return to state court

to exhaust additional claims and then return to federal court on an amended petition.

See Moss v. Hofbauer, No. 07-10687, 2007 WL 317968, *2-3 (E.D. Mich. Oct. 16,

2007).

Petitioner fails to show the need for a stay and abeyance. His current habeas

claims are exhausted and there is no indication that the one-year statute of limitations

applicable to federal habeas actions, see 28 U.S.C. § 2244(d), will preclude review.

The one-year limitations period did not begin to run until the conclusion of direct

appeal – when the United States Supreme Court denied rehearing on March 23, 2020.

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The one-year period then ran until July 15, 2020 when Petitioner filed his state court

motion for relief from judgment. At that point, less than four months of the one-year

period had elapsed. Petitioner’s collateral review proceedings have been pending in

the state courts since that time. The limitations period is tolled during the time in

which any properly filed post-conviction or collateral actions are pending in the state

courts. See 28 U.S.C. § 2244(d)(2); Carey v. Saffold, 536 U.S. 214, 219-221 (2002).

Given that more than eight months of the one-year period remains, Petitioner has

sufficient time to complete the state court process and return to federal court. Stay

and abeyance is unnecessary.

Because Petitioner has pending state collateral review proceedings which

concern his current convictions and may affect his ability to obtain habeas relief, he

should complete the state court process before proceeding in federal court. The

interests of comity, efficiency, and justice are best served by a non-prejudicial

dismissal of the habeas petition.

IV. Conclusion

Accordingly, for the reasons stated, the Court DISMISSES WITHOUT

PREJUDICE the petition for a writ of habeas corpus and DENIES the motion to hold

the case in abeyance.

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Before Petitioner may appeal, 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 a habeas petitioner makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on

procedural grounds, 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 court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S.

473, 484-85 (2000). Reasonable jurists could not debate the correctness of the Court’s

procedural ruling. Accordingly, the Court DENIES a certificate of appealability.

Lastly, the Court concludes that appeal from this decision cannot be taken in

good faith. See Fed. R. App. P. 24(a). Accordingly, the Court denies leave to proceed

in forma pauperis on appeal.

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IT IS SO ORDERED.

_s/Arthur J. Tarnow_________________

ARTHUR J. TARNOW

UNITED STATES DISTRICT JUDGE

Dated: June 28, 2021

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