Danford v. Brown

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DEREK M. DANFORD,

Petitioner, Case. No. 2:23-cv-10890

v. Hon. Nancy G. Edmunds

BARBRA STOREY, ACTING WARDEN,1

Respondent.

______________________________/

ORDER AND OPINION SUMMARILY DISMISSING THE PETITION FOR A WRIT OF

HABEAS CORPUS WITHOUT PREJUDICE AND DECLINING TO ISSUE A

CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

Petitioner Derek M. Danford, a state prisoner currently confined at the Kinross

Correctional Facility in Kincheloe, Michigan, has filed a pro se petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1998 convictions by a

Wayne County Circuit Court jury on two counts of first-degree murder, Mich. Comp. Laws

§ 750.316(1)(a); one count of assault with intent to murder, Mich. Comp. Laws § 750.83;

and the use of a firearm in the commission of a felony (felony-firearm), Mich. Comp. Laws

§ 750.227b(1). Petitioner was sentenced to life without parole for the murder convictions,

twenty to forty years for the assault charge, and two years for felony-firearm. Petitioner’s

sole claim for relief is that his attorney was constitutionally ineffective during the plea-

bargaining process.

1 The Court amends the caption to reflect the name of Petitioner’s current warden. See

Edwards v. Johns, 450 F. Supp. 2d 755, 757 (E.D. Mich. 2006); see also Rule 2(a) of the

Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254.

Because Petitioner has a motion for collateral relief pending in the state courts

which challenges the same convictions at issue in the current case, the Court will dismiss

the petition without prejudice. The Court will also deny a certificate of appealability and

leave to proceed in forma pauperis on appeal. An explanation follows.

I. BACKGROUND

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

the Michigan Court of Appeals which raised a single issue: that the trial court erred in

failing to suppress testimony involving a photographic array. People v. Danford, No.

214121, 2000 WL 33416888, at *1 (Mich. Ct. App. July 21, 2000). The court of appeals

affirmed Petitioner’s conviction, id., and the Michigan Supreme Court denied leave to

appeal. People v. Danford, 463 Mich. 975, 623 N.W.2d 598 (2001).

Petitioner filed a motion for relief from judgment in the trial court on October 3,

2018, in which he raised five claims of error. (ECF No. 1, PageID.3.) He argued 1, that

he was denied due process because he was “tried while incompetent”; 2, his trial counsel

was ineffective because of errors raising an alibi defense and 3, for failing to obtain an

expert witness; 4, his sentence was disproportionate in violation of the Eighth

Amendment; and 5, appellate counsel was ineffective for not raising meritorious issues.

(Id.) The trial court denied relief on February 14, 2019. (Id.)

Petitioner sought leave to appeal the ruling in the state court of appeals. In lieu of

granting leave, that court vacated the trial court’s order and remanded the case because

of errors in the lower court’s legal reasoning. People v. Danford, No. 360142 (Mich. Ct.

App. June 3, 2022) (unpublished order). According to the petition (see ECF No. 1,

PageID.8) and the register of actions in Petitioner’s criminal case, the trial court has not

yet acted on the remand order. See Register of Actions, People v. Danford, No. 98-

000814-01-FC (Wayne Co. Cir. Ct.).2 The motion thus remains pending in the state

courts.

Petitioner reports that he filed another motion for relief from judgment which raised

a single issue: “Trial counsel was Ineffective for failing to convey a plea offered by the

prosecution.” (ECF No. 1, PageID.4.) Petitioner filed the motion on December 21, 2020

(although he notes “some confusion as to the exact filing date . . .” (id. at PageID.4)), and

the trial court denied relief on August 16, 2021. (Id. at PageID.12-16.) The court denied

the motion because Petitioner met none of the exemptions to Michigan Court Rule

6.502(G)’s prohibition on successive motions for relief from judgment. (Id. at PageID.16.)

Both the state court of appeals and supreme court denied Petitioner leave to appeal.

People v. Danford, No. 360156 (Mich. Ct. App. June 13, 2022) (unpublished order), lv.

den., 980 N.W.2d 695 (Mich. 2022), reconsid. den., 985 N.W.2d 517 (Mich. 2023).

On April 11, 2023, Petitioner filed this habeas petition which raises a single ground

for relief: “Trial counsel was Ineffective during the plea-bargaining process where counsel

did not convey a plea to his client, which was offered by prosecution.” (ECF No. 1,

PageID.5.) Petitioner explains he rejected a plea offer with sentences of eighteen and two

years, because it required his cooperation and he refused to cooperate. (Id.) He asserts

that the prosecution extended a second plea offer of twenty-five and two years’

2 Available at https://cmspublic.3rdcc.org/CaseDetail.aspx?CaseID=248067 (last

accessed May 25, 2023). “[I]t is well-settled that federal courts may take judicial notice of

proceedings in other courts of record.” United States v. Mont, 723 F. App'x 325, 327 n.3

(6th Cir.), cert. granted, 139 S. Ct. 451 (2018), and aff'd on other grounds, 139 S. Ct.

1826 (2019) (citation omitted). The Court notes that the register of actions lists multiple

post-conviction motions, but it is only addressing the two Petitioner raised in his petition.

incarceration which did not require his cooperation, but he was never informed of this

second offer. (Id. at PageID.6.) Petitioner acknowledges his petition is untimely, but

explains why he should be entitled to equitable tolling of the deadline. (Id. at PageID.10.)

II. 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.; see also Allen v. Perini, 424 F.2d 134,

141 (6th Cir. 1970) (district court has the duty to “screen out” petitions 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. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006) (citing McMeans v.

Brigano, 228 F.3d 674, 681 (6th Cir. 2000)). 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 v. Greer, 481 U.S. 129, 131, 134-35

(1987).

Petitioner has exhausted the single issue he raises in the petition now before the

Court. However, as explained above, collateral review proceedings continue in the state

courts involving the same convictions at issue here. Challenging the same state criminal

convictions simultaneously in both state and federal court is “inappropriate.” See, e.g.,

Brown v. Braman, No. 2:21-CV-11330, 2021 WL 2646105, at *2 (E.D. Mich. June 28,

2021), appeal dismissed, No. 21-2915, 2021 WL 6102090 (6th Cir. Sept. 28, 2021)

(dismissing habeas petition without prejudice because of “pending state collateral review

proceedings which concern his current convictions and may affect his ability to obtain

habeas relief . . .”) (collecting cases).

In addition, although Petitioner’s pending state collateral proceedings may not

implicate the claim in his current petition, they may result in the reversal of his convictions

on another ground, thereby mooting the federal questions presented here. 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).

In further support for a dismissal without prejudice, the Court notes that if it were

to rule on the current petition, Petitioner would likely be barred later from filing another

habeas petition based on the pending state claims. Under the statute governing second

or successive habeas petitions, 28 U.S.C. § 2244(b), later petitions which challenge the

same state court judgment must be dismissed unless they meet very narrow exemptions.

§ 2244(b)(2). Even if Petitioner met those exemptions, he would be required to move for

the Sixth Circuit Court of Appeals to authorize him to file second habeas petition

challenging his convictions on the grounds currently pending in state court. § 2244(b)(3).

Dismissing the current petition without prejudice preserves Petitioner’s ability to present

a habeas petition containing all the claims he has identified and exhausted.

Finally, the Court concludes that dismissal is more appropriate than staying the

petition. Staying a case and placing a petition in abeyance is permissible pending the

exhaustion of unexhausted claims. Rhines v. Weber, 544 U.S. 269, 276 (2005). However,

such relief is available only in “limited circumstances . . .” Id. at 275, 277. Stay and

abeyance is generally reserved for those cases where the one-year limitations period of

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is likely to expire

before a habeas petitioner can exhaust additional claims in the state courts and then

return to federal court with an amended petition. See Moss v. Hofbauer, No. 07-10687,

2007 WL 317968, *2-3 (E.D. Mich. Oct. 16, 2007). Petitioner is not at risk for the expiration

of the AEDPA deadline (rather, he will have to explain why equitable tolling applies to his

circumstances when his petition finally is heard), so a stay is unnecessary here.

In sum, 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. Petitioner’s interests

and those of comity, efficiency, and justice are best served by a dismissal of the habeas

petition without prejudice.

III. CONCLUSION AND ORDER

For the reasons stated above, the habeas petition is DISMISSED WITHOUT

PREJUDICE.

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.

The Court also concludes that an 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.

Finally, the Clerk of Court is directed to correct the case caption as indicated

above.

No part of this Order should be construed as a ruling on the merits of the petition

or the timeliness of its filing.

SO ORDERED.

s/ Nancy G. Edmunds

NANCY G. EDMUNDS

Dated: May 30, 2023 UNITED STATES DISTRICT JUDGE