Boles v. Foltz

• Citation: 559 F. Supp. 1302
• Decision Date: 24 March 1983
• Docket Number: Civ. A. No. 82-72544.
• Parties: Robert Lee BOLES, Jr., Petitioner, v. Dale FOLTZ, Respondent.
• Court: U.S. District Court — Western District of Michigan

559 F. Supp. 1302

Robert Lee BOLES, Jr., Petitioner, v. Dale FOLTZ, Respondent.

Civ. A. No. 82-72544.

United States District Court, E.D. Michigan, S.D.

March 24, 1983.

Robert Lee Boles, Jr., in pro. per.

Eric Eggan, Asst. Atty. Gen., Crim. Appeals Section, Lansing, Mich., for respondent.

OPINION

COHN, District Judge.

I

Before me is a pro se application for a writ of habeas corpus, 28 U.S.C. § 2254. On December 19, 1978, Petitioner was convicted of first degree felony murder by a jury in Saginaw County, Michigan Circuit Court. He is presently serving the mandatory sentence of non-parolable life imprisonment at the State Prison of Southern Michigan. The facts underlying Petitioner's conviction are accurately summarized in the opinions of the Michigan Court of Appeals, People v. Boles, (Docket No. 44551, unpublished per curiam opinions of September 5, 1980 and April 23, 1981) and need not be repeated here.

The petition alleges the following as grounds for federal habeas corpus relief:

1. Conviction obtained by use of a coerced confession.

2. Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure.

3. Conviction obtained by use of evidence obtained pursuant to an unlawful arrest.

4. Conviction obtained by a violation of the privilege against self-incrimination.

5. Conviction obtained by the unconstitutional failure of the prosecution to disclose trial evidence favorable to Petitioner.

6. Petitioner was denied effective assistance of counsel.

7. Conviction was obtained by action of a petit jury which was unconstitutionally selected and impaneled.

8. Denial of right to appeal.

Counsel for Respondent has answered the petition and filed records of the state trial and appellate proceedings pursuant to Rule 5 of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254.¹ Respondent contends that Petitioner has not exhausted available state court remedies as to one of his present claims (issue 3, infra) and that consequently, this is a "mixed" petition which must be dismissed under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). In order to resolve this threshold issue of exhaustion of state remedies, the Court will review in some detail the state appellate proceedings to determine whether, as 28 U.S.C. § 2254(b) and (c) and Rose v. Lundy, supra, require, the substance of each of Petitioner's constitutional claims has been fairly presented to the state courts.

II

Following the imposition of sentence in January, 1979, Petitioner appealed by right to the Michigan Court of Appeals. The brief filed on his behalf by court-appointed counsel raised the following issues:

I. Denial of the motion to suppress confessions which were obtained in violation of his right to counsel and were products of a delay in arraignment and promises of leniency.

II. Prosecution failed to exercise due diligence to produce an endorsed res gestae witness — Harry Bond — at trial.

III. Prosecution used peremptory challenges to systematically exclude blacks from the jury.

In an unpublished per curiam opinion dated September 5, 1980, the Michigan Court of Appeals rejected Petitioner's first and third claims, but held that the prosecution had failed to exercise due diligence in attempting to produce a res gestae witness at trial. People v. Boles, (Docket No. 44551) (Bashara, J., dissenting). Pursuant to People v. Pearson, 404 Mich. 698, 273 N.W.2d 856 (1979), the Court vacated the conviction and remanded the case for new trial or a hearing at which the prosecution could try to prove that Petitioner was not prejudiced by the failure to produce the witness at trial.

On remand, the trial court conducted the evidentiary hearing, found that Petitioner had not been prejudiced, and reinstated the conviction. Petitioner's counsel then filed a supplemental brief in the Michigan Court of Appeals, arguing that had the witness been available at trial, Petitioner could have challenged the validity of a search warrant and the admission of evidence seized under that warrant. In a second per curiam opinion, the Court of Appeals held that: 1) Harry Bond could not have been produced at trial, 2) the trial court should have permitted Petitioner to make an evidentiary record concerning the validity of the search warrant at the post-remand hearing but, 3) any error in the admission of evidence seized under the warrant was harmless beyond a reasonable doubt. People v. Boles, After Remand, (April 25, 1981). Accordingly, Petitioner's conviction was affirmed.

Petitioner then filed a pro se application for leave to appeal in the Michigan Court of Appeals, raising the following issues:

I. Denial of Petitioner's motion to suppress his confessions was error.

II. (A) Erroneous admission of unconstitutionally obtained evidence at trial was prejudicial.

II. (B) The Court of Appeals reversibly erred where the evidence was seized under a search warrant which was based upon a misleading and recklessly inaccurate affidavit.

III. The prosecution's use of peremptory challenges to exclude blacks from the jury denied Petitioner an impartial trial by jury.

Petitioner was granted leave to file a supplemental "reply" brief, People v. Boles, 413 Mich. 924 (1982), which re-stated in expanded form issues I and II of the first brief and added the following claim:

There was no probable cause for Petitioner's arrest and the confession was the result of the illegal arrest.

In addition, the "reply" brief alleged that: 1) Petitioner had not received a full and fair hearing on his Fourth Amendment claim, and 2) the Michigan Court of Appeals denied him due process by applying an erroneous legal standard to his Fourth Amendment claim. (Reply Brief, p. 28). The Michigan Supreme Court denied leave to appeal, stating: "the Court is not persuaded that the questions presented should be reviewed by this Court." People v. Boles, 413 Mich. 924 (1982).

III

My review of the records of the state appellate proceedings summarized above leads to the following conclusions.

A

Petitioner has exhausted state court remedies as to five of the eight numbered claims in the petition. Issues 1 (coerced confession), 2 (unconstitutional search and seizure), 4 (violation of privilege against self-incrimination), and issue 7 (exclusion of blacks from jury) were all clearly presented to both the Michigan Supreme Court and Michigan Court of Appeals.

While issue 3 (illegal arrest) was not raised as a separate issue in the Michigan Court of Appeals, that claim was presented to the Michigan Supreme Court in the supplemental brief which that court permitted him to file. I do not accept the view, advanced in Winegar v. Corrections Department, 435 F.Supp. 285, 289 (W.D.Mich.1978), that in order to satisfy the exhaustion of remedies requirement, a habeas petitioner challenging a Michigan conviction must always present his claim to the Michigan Court of Appeals before raising it in the Michigan Supreme Court.² Here, the Michigan Supreme Court order denying Petitioner leave to appeal did not specifically indicate why relief was denied. Given the ambiguity of that order, the fact Petitioner was allowed to file the "reply" brief raising the issue and that the facts underlying the claim of illegal arrest were presented to both the trial court and the Michigan Court of Appeals in connection with Petitioner's challenge to the admission of his confessions, I cannot assume that the Michigan Supreme Court denied relief simply because Petitioner's claim (issue 3, infra) had not been explicitly raised in the Court of Appeals. Accordingly, Petitioner will be deemed to have exhausted state court remedies as to issue 3.

B

Petitioner has not exhausted state remedies with respect to the two³ remaining constitutional claims — issues 5 (prosecution's failure to disclose evidence favorable to petition) and 6 (ineffective assistance of counsel) — contained in the petition. Careful examination of all of the pleadings filed by Petitioner in the state appellate proceedings reveals that those issues have never been presented to either the Michigan Court of Appeals or the Michigan Supreme Court.⁴

IV

A

In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court held that 28 U.S.C. § 2254(b) and (c) requires a federal district court to dismiss a petition for a writ of habeas corpus containing any claims that have not been exhausted in the state courts, "leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." 455 U.S. at 510, 102 S.Ct. at 1199. Because Petitioner's application for a writ of habeas corpus contains two unexhausted claims, the Court cannot now consider the merits of the issues presented.

B

However, in accordance with Rose v. Lundy, the petitioner will be granted leave to amend the petition so as to raise only those claims for which state court remedies have been exhausted. In granting leave to amend, this Court in no way suggests that Petitioner must or should amend his petition. The choice between: (1) amending the petition, deleting the unexhausted claims, or (2) returning to state court to exhaust his other claims is for Petitioner alone.⁵ If an amended petition raising only the exhausted claims is not timely filed, the Court will assume that Petitioner intends to seek further relief in the state courts, and will therefore enter a judgment dismissing the petition without prejudice.

C

I am aware that the recent en banc decision of the Sixth Circuit in Bowen v. State of Tennessee, 698 F.2d 241 (6th Cir.1983) might be construed as implicitly disapproving the practice of granting a habeas petitioner leave to amend a "mixed" petition before dismissing the petition pursuant to Rose v. Lundy. In Bowen, a district court confronted with a mixed petition dismissed the unexhausted issue, but...