Sinistaj v. Burt

• Citation: 860 F. Supp. 1209
• Decision Date: 18 August 1994
• Docket Number: No. 93-CV-70618-DT.,93-CV-70618-DT.
• Parties: Fran SINISTAJ, Petitioner, v. Sherry BURT, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

860 F. Supp. 1209

Fran SINISTAJ, Petitioner, v. Sherry BURT, Respondent.

No. 93-CV-70618-DT.

United States District Court, E.D. Michigan, Southern Division.

August 18, 1994.

Fran Sinistaj, in pro. per.

Arthur E. D'Hondt, Asst. Atty. Gen., Habeas Corpus Div., Lansing, MI, for respondent.

OPINION

GILMORE, District Judge.

Petitioner Fran Sinistaj, an inmate in the custody of the Michigan Department of Corrections, has filed this pro se petition for writ of habeas corpus under 28 U.S.C. § 2254. Petitioner raises the same five claims earlier raised in his appeals before the Michigan Court of Appeals and the Michigan Supreme Court in support of his request for habeas relief. These five issues include: (1) Whether the new trial judge's refusal to permit withdrawal of petitioner's waiver of a jury trial denied Petitioner his Sixth Amendment right to a jury trial; (2) Whether the transfer to the new judge, allegedly in violation of Recorder's Court docket control directives, denied Petitioner his Fourteenth Amendment right to due process of law; (3) Whether it was error to exclude evidence of his co-defendant's conviction when the charge was carrying a concealed weapon and there was only one gun involved; (4) Whether Petitioner was denied a fair trial by the prosecutor's failure to produce, or inform defense counsel of the name, and existence of, res gestae witnesses, and by defense counsel's failure to force the prosecutor to investigate the case and find these witnesses; and (5) Whether the sentence imposed constitutes an abuse of discretion because it substantially departs from the state sentencing guidelines. The matter was referred to Magistrate Judge Steven D. Pepe, who submitted a report and recommendation that the petition for habeas corpus be denied without prejudice for the reason that Petitioner presents a mixed petition, containing both exhausted claims and unexhausted claims that have not been fairly presented to the state courts. After careful consideration of the evidentiary and constitutional issues involved, the Court concludes that although the instant petition is a mixed petition, containing both exhausted and unexhausted claims, the petition for writ of habeas corpus must be granted.

I

Petitioner was charged and convicted of carrying a concealed weapon, in violation of Mich.Comp.Laws Ann. § 750.227. The bench trial of this case was held in Detroit Recorder's Court on April 27, 1990 before Judge Leonard Townsend. On that same date, Petitioner's co-defendant, Nuo Dresaj, pled guilty to carrying a concealed weapon before Judge John Patrick O'Brien.

Petitioner's case was originally assigned to Judge O'Brien. On December 8, 1989, Petitioner and co-defendant Dresaj appeared before Judge O'Brien and formally waived a jury trial. Both defendants were advised of their constitutional rights to a trial by jury and signed waivers to their right to a jury. The cases against Petitioner and Mr. Dresaj were then scheduled for a bench trial to commence on April 27, 1990.

On April 27, 1990, Mr. Dresaj pled guilty to carrying a concealed weapon before Judge O'Brien. Immediately thereafter, the prosecutor moved for a reassignment to another judge. The prosecutor claimed that reassignment was necessary because Judge O'Brien had heard the guilty plea from Mr. Dresaj and, therefore, should not sit as the trier of fact in Petitioner's trial. Although Judge O'Brien indicated that he did not see a proprietary problem with hearing the case, he agreed to allow reassignment. Counsel for Petitioner requested a blind draw to effect the reassignment of Petitioner's trial. The Prosecutor consented to this request. Judge O'Brien would not, however, allow a blind draw for reassignment of the trial. Rather, Judge O'Brien stated that the case should be reassigned to Judge Townsend because:

It's the day of trial. I think if we've got a Judge ready to try it, we'll ship it to Townsend.

Transcript of Pre-Trial Hearing, p. 5.

On the same date, April 27, 1990, the parties appeared before Judge Townsend. Defense counsel indicated that Petitioner wished to withdraw his waiver of trial by jury and either have a jury trial or a blind draw for a new judge. The colloquy between defense counsel, the Prosecutor and the court occurred as follows:

THE CLERK: XX-XXXXXX People versus Fran Sinistaj, charged carrying concealed weapon, today is the date set for trial and on December 8, 1989 a waiver of trial by jury was signed and filed before the Honorable John Patrick O'Brien.

MR. BOGDANSKI DEFENSE COUNSEL: As the Court is aware this Court has just been spun out of judge apparently based on the prosecution motion because Judge O'Brien heard a —

MR. KING THE PROSECUTOR: I am going to object to that Judge O'Brien made a legal ruling and we are here.

MR. BOGDANSKI: Over my objection we are here, your Honor. As the Court after advising my client of the situation, he indicated to me that he wish this to withdraw his waiver of jury trial and he either have a jury trial before this judge or the blind draw it.

THE COURT: This is the trial date; of course, I usually permit a waiver of trial by jury but in an instance where a waiver has been filed and it is ready to go to trial and the waiver is being withdrawn is the record I can only make the record. We are ready to proceed with the trial.

MR. BOGDANSKI: I think Judge O'Brien indicated on the record downstairs that it was his opinion he would if it came here he would have pulled the waiver of jury trial.

THE COURT: If you go and talk to three other judges three of them might say the same thing. The gentleman wants to waive a jury. He is — wanted to be — waive a trial — the waiver goes unconditionally; it doesn't go to certain judges.

MR. BOGDANSKI: My objection is, he has a right to a jury. I think his Constitutional Rights is being violated. I think he waived it before Judge O'Brien. He waived it before the Court.

THE COURT: Let's proceed with the matter.

Transcript of Waiver and Trial, pp. 3-4.

Judge Townsend denied Petitioner's request for a withdrawal of the waiver and the trial commenced. Following closing argument from defense counsel, Judge Townsend found Petitioner guilty of carrying a concealed weapon.

II

28 U.S.C. § 2254¹ entitles a state prisoner to file a petition for a writ of habeas corpus in federal district court. A district court cannot grant the writ "unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." 28 U.S.C. § 2254(b).

In Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court of the United States considered "whether the exhaustion rule in 28 U.S.C. §§ 2254(b), (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." Id. at 510, 102 S.Ct. at 1199. The Court held "that a district court must dismiss such `mixed petitions,' 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." Id.

However, the Supreme Court narrowed the application of Rose in Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). In Granberry a state prisoner's habeas corpus petition was dismissed by the district court on the merits. On appeal to the Seventh Circuit, the State raised the nonexhaustion defense for the first time. The appellate court rejected petitioner's assertion that the State waived the nonexhaustion defense because the State did not raise the issue previously. Granting certiorari, the Supreme Court examined whether a State's failure to raise the nonexhaustion defense in a district court bars an appellate court from considering the merits of a habeas corpus application. Granberry, 481 U.S. at 130-31, 107 S.Ct. at 1673-74. The Court held the State's failure to raise the nonexhaustion defense,

makes it appropriate for the court of appeals to take a fresh look at the issue. The court should determine whether the interests of comity and federalism will be better served by addressing the merits forthwith or by requiring a series of additional state and district court proceedings before reviewing the merits of the petitioner's claim.

Granberry, 481 U.S. at 134, 107 S.Ct. at 1675.

The United States Court of Appeals for the Sixth Circuit has recognized that the Rose case prohibits the district courts generally from ruling on mixed petitions. See Manning v. Alexander, 912 F.2d 878, 881 (6th Cir.1990) (reversing District Court's dismissal of habeas petition on grounds that petitioner fulfilled the exhaustion requirement by raising his claims before the state's highest appellate court); Shoultes v. Laidlaw, 886 F.2d 114 (6th Cir.1989) (holding petitioner's habeas petition containing a first amendment claim not presented to state courts was properly dismissed).

In addition, the Sixth Circuit interpreted Granberry as "allowing federal courts to use their sound discretion in deciding the waiver issue and to make exceptions in the application of the mixed petition doctrine of Rose v. Lundy." Weaver v. Foltz, 888 F.2d 1097, 1100 (6th Cir.1989). Generally, when exhausted claims are combined with unexhausted claims which do not arise under federal law, the court may examine the merits of the exhausted claim. Haggins v. Warden, Fort Pillow State Farm, 715 F.2d 1050 (6th Cir.1983), cert. denied, 464 U.S. 1071, 104 S.Ct. 980, 79 L.Ed.2d 217 (1984) (holding that to remand an exhausted claim on grounds it was combined with a frivolous unexhausted claim was a disservice to the state courts); Acosta-Huerta v. Estelle, 7 F.3d 139, 142 (9th Cir.1993) (unexhausted state claim regarding evidence was...