In re Payne

• Decision Date: 26 November 2014
• Docket Number: CIVIL NO. 14-cv-11427
• Parties: GREGORY V. PAYNE, Petitioner, v. DUNCAN MACLAREN, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

GREGORY V. PAYNE, Petitioner, v. DUNCAN MACLAREN, Respondent.

CIVIL NO. 14-cv-11427

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

November 26, 2014

HONORABLE GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT

OPINION AND ORDER SUMMARILY DISMISSING WITHOUT PREJUDICE THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY OR LEAVE TO APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

Gregory V. Payne, ("Petitioner"), confined at the Kinross Correctional Facility in Kincheloe, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges his conviction for four counts of first-degree criminal sexual conduct, M.C.L. § 750.520b(1)(b), and two counts of second-degree criminal sexual conduct, M.C.L. § 750.520c(1)(b). For the reasons stated below, the petition for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE.

II. BACKGROUND

Mr. Payne was convicted following a jury trial in the Macomb County Circuit Court. Mr. Payne's conviction was affirmed on direct appeal. People v. Payne, No. 296638, 2012 WL 1367537 (Mich. Ct. App. April 19, 2012), lv den 493 Mich. 857, 820 N.W.2d 784 (2012).

On March 7, 2013, Mr. Payne filed a post-conviction motion for relief from judgment with the Macomb County Circuit Court, which remains pending with that court.

On December 10, 2013, Petitioner filed a petition for writ of habeas corpus, in which he seeks relief on the following grounds:¹

I. The Petitioner, Gregory V. Payne, is currently imprisoned pursuant to a conviction obtained through the use of a "coerced confession" and its amendment.

II. The Petitioner, Gregory V. Payne's attorney's performance was deficient, thus making "counsel ineffective," in violation of the Sixth and Fourteenth Amendments.

III. The Petitioner, Gregory V. Payne, is actually innocent and as is demonstrated in this ... issue, it is proven that in light of all the reliable evidence that was not presented at trial, it is more likely than not that no reasonable juror would have convicted the Petitioner. The errors by Petitioner's attorney, by "not" introducing the following evidence, worked to the actual and substantial disadvantage of the Petitioner. Petitioner's subsequent and current incarceration is therefore violative of due process as enumerated in the Fourteenth Amendment of the Constitution of the United States.

IV. The trial judge, David F. Viviano abused his discretion when he did not allow the Petitioner, Gregory V. Payne, to remove his court-appointed attorney or represent himself, thus violating Article 1, Section 13 of the Constitution of Michigan of 1963 and the Fourteenth Amendment of the Constitution of the United States.²

Respondent has filed a Motion for Summary Judgment on the grounds that the petition contains claims which have yet to be properly exhausted with the state courts.

III. DISCUSSION

The instant petition is subject to dismissal because it contains claims that have yet to be properly exhausted with the state courts.

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). Although exhaustion is not a jurisdictional matter, "it is a threshold question that must be resolved" before a federal court can reach the merits of any claim contained in a habeas petition. See Wagner v. Smith, 581 F. 3d 410, 415 (6th Cir. 2009). Therefore, each claim must be reviewed by a federal court for exhaustion before any claim may be reviewed on the merits by a federal court. Id. 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. See Sitto v. Bock, 207 F. Supp. 2d 668, 675 (E.D. Mich. 2002).

Mr. Payne's first claim involving his coerced confession has yet to be properly exhausted in the state courts. Petitioner mentioned briefly in his pro se Standard 4 brief before the Michigan Court of Appeals that Secret Service Special Agent Mark O'Riordan violated his due process rights when he told Mr. Payne what to write down in his statement to the agent. Mr. Payne, however, never developed this claim in his brief or cited to any federal cases or constitutional provisions. Mr. Payne did not even specifically argue that Agent Riordan had coerced a confession out of him. A habeas petitioner's "sporadic and undeveloped allusions" to a claim do not satisfy the exhaustion requirement. See Vasquez v. Jones, 496 F. 3d 564, 568 (6th Cir. 2007). Although Mr. Payne alleged that Agent O'Riordan had violated his due process rights, Petitioner did not specifically allege that Agent O'Riordan had coerced his confession or violated his Fifth Amendment right against self-incrimination.³

General allegations of the denial of rights to a fair trial and due process do not fairly present claims that specific constitutional rights were violated so as to satisfy the exhaustion requirement. See McMeans v. Brigano, 228 F. 3d 674, 681 (6th Cir. 2000). Because Mr. Payne's coerced confession claim was raised in only a conclusory fashion on his appeal before the Michigan Court of Appeals, this is insufficient to satisfy the exhaustion requirement. See e.g. Hammock v. Walker, 224 F.Supp.2d 544, 548 (W.D.N.Y. 2002); see also Green v. Howes, No. 06-CV-10898, 2007 WL 216136, at *2 (E.D. Mich. January 26, 2007).

Although Mr. Payne subsequently raised a coerced confession claim in his application for leave to appeal to the Michigan Supreme Court,⁴ this would be insufficient to exhaust this claim for habeas purposes. Raising a claim for the first time before the state courts on discretionary review does not amount to a fair presentation of the claim to the state courts for exhaustion purposes. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Because Mr. Payne failed to adequately present his coerced confession claim on his direct appeal with the Michigan Court of Appeals, his subsequent presentation of this claim to the Michigan Supreme Court does not satisfy the exhaustion requirement for habeas purposes. See Skinner v. McLemore, 425 Fed.Appx. 491, 494 (6th Cir. 2011); Farley v. Lafler, 193 Fed.Appx. 543, 549 (6th Cir. 2006). Petitioner's first claim is unexhausted.

A portion of Mr. Payne's second claim, in which he raises numerous allegations of ineffective assistance of trial counsel, is also unexhausted. Although Mr. Payne's appellate counsel raised several ineffective assistance of trial counsel claims in his brief on appeal,⁵ and Mr. Payne raised additional several ineffective assistance of counsel claims in his Standard 4 brief, there are several ineffective assistance of trial counsel claims that were not raised by either appellate counsel or Mr. Payne on Petitioner's direct appeal. Mr. Payne's claims that counsel was ineffective for failing to move for a hearing to challenge the voluntariness of his statement to Agent O'Riordan, that counsel failed to interview or contact witnesses, that counsel was constructively absent from trial, and that he failed to move for a mistrial do not appear to have been raised by Mr.Payne or his appellate counsel on Petitioner's direct appeal before either the Michigan Court of Appeals or the Michigan Supreme Court.

A habeas petitioner is required to present to the state courts "the same specific claims of ineffective assistance [of counsel] made out in the habeas petition." Wyldes v. Hundley, 69 F.3d 247, 253 (8th Cir. 1995) (quoting Tippitt v. Lockhart, 903 F.2d 552, 554 (8th Cir. 1990). Because some of Mr. Payne's ineffective assistance of counsel claims that he raises in his petition are different than the ineffective assistance of trial counsel claims raised in Petitioner's direct appeal, these ineffective assistance of trial counsel claims were not fairly presented to the Michigan appellate courts, for exhaustion purposes. 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 Fed.Appx. 458, 459 (6th Cir. 2007).

Finally, Mr. Payne's third claim alleging actual innocence was never presented to either the Michigan Court of Appeals or the Michigan Supreme Court on direct appeal. Petitioner is required to present his actual innocence claim to the state courts before a federal court can consider such a claim on habeas review. See e.g. Howard v. Wolfe, 199 Fed.Appx. 529, 532 (6th Cir. 2006); Cammuse v. Morgan, 105 Fed.Appx. 667, 669 (6th Cir. 2004).

Mr. Payne's habeas application is also subject to dismissal because Petitioner has a post-conviction motion that remains pending in the Macomb County Circuit Court concerning the convictions challenged in this petition. The general rule is that a habeas petition should be denied on exhaustion grounds where the Petitioner's post-conviction motion remains pending in the state courts. See Juliano v. Cardwell, 432 F.2d 1051,1051 (6th Cir. 1970). Petitioner must complete his state post-conviction proceedings before seeking habeas relief in this Court. See Humphrey v. Scutt, No. 08-CV-14605, 2008 WL 4858091, at *1 (E.D. Mich. November 5, 2008); Witzke v. Bell, No. 07-CV-15315, 2007 WL 4557674 (E.D. Mich. December 20, 2007).

Even if Mr. Payne had already exhausted all of the claims that he raises in his current petition on direct appeal, this would not be enough to satisfy the exhaustion requirement of of 28 U.S.C. §§ 2254(b) and (c). When an appeal of a state criminal conviction is pending in the state courts, as is the case here, "a would-be habeas corpus petitioner must await the outcome of his appeal before his state remedies are exhausted, even where the issue to be...