Campbell #317592 v. Rurka

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______
EDWARD ALEXANDER CAMPBELL,
Petitioner,
v.
BRYAN MORRISON,
Respondent.
____________________________/
Case No. 1:25-cv-1003
Hon. Hala Y. Jarbou
OPINION
This is a habeas corpus action brought by a state prisoner under 28 U.S.C. § 2254. The
Court will grant Petitioner application to proceed in forma pauperis. (ECF No. 2.)
Promptly after the filing of a petition for habeas corpus, 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; see 28 U.S.C. § 2243. If so, the petition must be
summarily dismissed. Rule 4; see Allen v. Perini, 424 F.2d 134, 141 (6th Cir. 1970) (discussing
that a district court has the duty to “screen out” petitions that lack merit on their face). A dismissal
under Rule 4 includes those petitions which raise legally frivolous claims, as well as those
containing factual allegations that are palpably incredible or false. Carson v. Burke, 178 F.3d 434,
436–37 (6th Cir. 1999). After undertaking the review required by Rule 4, the Court concludes that
the issues raised in the petition are unexhausted. The Court will stay these proceedings and hold
them in abeyance pending Petitioner’s exhaustion of his state court remedies and return to this
Court under the conditions described herein.
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Discussion
I. Factual allegations
Petitioner Edward Alexander Campbell is incarcerated with the Michigan Department of
Corrections at the Kinross Correctional Facility (KCF) in Kincheloe, Chippewa County, Michigan.
Petitioner is presently serving 11 sentences imposed in four different criminal prosecutions in the
Kent County Circuit Court. The only convictions and sentences being challenged in the instant
petition are sentences imposed after a Kent County jury convicted Petitioner of two controlled
substance offenses. The Court sentenced Petitioner to concurrent sentences of 2 to 15 years and 13
to 40 years.
Petitioner appealed his convictions to the Michigan Court of Appeals. By opinion issued
on September 19, 2024, the Court affirmed Petitioner’s convictions and sentences. Petitioner did
not file a timely application for leave to appeal to the Michigan Supreme Court.
On August 19, 2025, Petitioner filed his habeas corpus petition raising four grounds for
relief.
II. Exhaustion of State Court Remedies
Before the Court may grant habeas relief to a state prisoner, the prisoner must exhaust
remedies available in the state courts. 28 U.S.C. § 2254(b)(1); O’Sullivan v. Boerckel, 526 U.S.
838, 842 (1999). Exhaustion requires a petitioner to “fairly present” federal claims so that state
courts have a “fair opportunity” to apply controlling legal principles to the facts bearing upon a
petitioner’s constitutional claim. Id. at 844, 848; see also Picard v. Connor, 404 U.S. 270, 275–77
(1971); Duncan v. Henry, 513 U.S. 364, 365 (1995); Anderson v. Harless, 459 U.S. 4, 6 (1982).
To fulfill the exhaustion requirement, a petitioner must have fairly presented his federal claims to
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all levels of the state appellate system, including the state’s highest court. O’Sullivan, 526 U.S. at
845; Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009); Hafley v. Sowders, 902 F.2d 480, 483
(6th Cir. 1990). The district court can and must raise the exhaustion issue sua sponte when it clearly
appears that habeas claims have not been presented to the state courts. See Prather v. Rees, 822
F.2d 1418, 1422 (6th Cir. 1987); Allen, 424 F.2d at 138–39.
Petitioner bears the burden of showing exhaustion. See Rust v. Zent, 17 F.3d 155, 160 (6th
Cir. 1994). Petitioner acknowledges that he has not exhausted his state court remedies because he
never presented his claims to the Michigan Supreme Court. He asks the Court to excuse his failure
to exhaust because it was his appellate counsel’s fault. (Pet’r’s Mot., ECF No. 3.)
An applicant has not exhausted available state remedies if he has the right under state law
to raise, by any available procedure, the question presented. 28 U.S.C. § 2254(c). Petitioner has at
least one available procedure by which to raise the issues he has presented in this application. He
may file a motion for relief from judgment under Mich. Ct. R. 6.500 et seq. Under Michigan law,
one such motion may be filed after August 1, 1995. Mich. Ct. R. 6.502(G)(1). Petitioner has not
yet filed his one allotted motion. Therefore, the Court concludes that he has at least one available
state remedy. To properly exhaust his claim, Petitioner must file a motion for relief from judgment
in the Kent County Circuit Court. If his motion is denied by the circuit court, Petitioner must appeal
that decision to the Michigan Court of Appeals and the Michigan Supreme Court. O’Sullivan, 526
U.S. at 845; Hafley, 902 F.2d at 483 (“‘[P]etitioner cannot be deemed to have exhausted his state
court remedies as required by 28 U.S.C. § 2254(b) and (c) as to any issue, unless he has presented
that issue both to the Michigan Court of Appeals and to the Michigan Supreme Court.’”) (citation
omitted).
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Petitioner’s application is subject to the one-year statute of limitations provided in 28
U.S.C. § 2244(d)(1). Under that provision, the one-year limitations period runs from “the date on
which the judgment became final by the conclusion of direct review or the expiration of the time
for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). Petitioner appealed his convictions to the
Michigan Court of Appeals, but not the Michigan Supreme Court.
Where a petitioner has failed to pursue an avenue of appellate review available to him, the
time for seeking review at that level is counted under § 2244(d)(1)(A). See 28 U.S.C.
§ 2244(d)(1)(A) (stating that the time for filing a petition pursuant to § 2254 runs from “the date
on which the judgment became final by the conclusion of direct review or the expiration of time
for seeking such review” (emphasis added)). However, such a petitioner is not entitled to also count
the 90-day period during which he could have filed a petition for certiorari to the United States
Supreme Court. See Gonzalez v. Thaler, 565 U.S. 134, 152–53 (2012) (holding that, because the
Supreme Court can review only judgments of a state’s highest court, where a petitioner fails to
seek review in the state’s highest court, the judgment becomes final when the petitioner’s time for
seeking that review expires).
Under Michigan law, a party in a criminal case has 56 days after the court of appeals has
entered an order or opinion resolving an appeal or original action to file an application for leave to
appeal to the Michigan Supreme Court. See Mich. Ct. R. 7.305(C)(2)(a). The Michigan Court of
Appeals affirmed Petitioner’s convictions on September 19, 2024. Therefore, for Petitioner, that
56-day period expired on Thursday, November 14, 2024. Petitioner then had one year from that
date, until Friday, November 14, 2025, to file his § 2254 petition. As set forth above, Petitioner
timely filed his petition on August 19, 2025. Since that date, however, the period of limitation has
run.
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The running of the statute of limitations is tolled while “a properly filed application for
State post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending.” 28 U.S.C. § 2244(d)(2). The statute of limitations is tolled from the filing of an
application for state post-conviction or other collateral relief until a decision is issued by the state
supreme court. Lawrence v. Florida, 549 U.S. 327 (2007). The statute is not tolled during the time
that a Petitioner petitions for writ of certiorari in the United States Supreme Court. Id. at 332. Thus,
so long as Petitioner’s request for collateral review is pending, the time will not count against him.
But, until he files his motion and after the Michigan Supreme Court rules on his application for
leave to appeal to that court, the statute of limitations will run.
Under Rose v. Lundy, 455 U.S. 509, 522 (1982), district courts are directed to dismiss
petitions including unexhausted claims without prejudice in order to allow petitioners to return to
state court to exhaust remedies. However, since the habeas statute was amended to impose a one-
year statute of limitations on habeas claims, see 28 U.S.C. § 2244(d)(1), dismissal without
prejudice often effectively precludes future federal habeas review. This is particularly true after
the Supreme Court ruled in Duncan v. Walker, 533 U.S. 167, 181–82 (2001), that the limitations
period is not tolled during the pendency of a federal habeas petition.
To avoid that harsh result, the Sixth Circuit adopted a stay-and-abeyance procedure to be
applied to petitions that include unexhausted claims. See Palmer v. Carlton, 276 F.3d 777, 781
(6th Cir. 2002). In Palmer, the Sixth Circuit held that when the dismissal of a mixed petition could
jeopardize the timeliness of a subsequent petition, the district court should dismiss only the
unexhausted claims and stay further proceedings on the remaining portion until the petitioner has
exhausted his claims in the state court. Id.; see also Rhines v. Weber, 544 U.S. 269, 277 (2007)
(approving stay-and-abeyance procedure); Griffin v. Rogers, 308 F.3d 647, 652 n.1 (6th Cir. 2002).
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The Palmer Court has indicated that thirty days is a reasonable amount of time for a
petitioner to file a motion for post-conviction relief in state court, and another thirty days is a
reasonable amount of time for a petitioner to return to federal court after he has exhausted his state-
court remedies. Palmer, 276 F.3d at 781; see also Griffin, 308 F.3d at 653 (holding that sixty days
amounts to a mandatory period of equitable tolling under Palmer). The limitation period has now
expired. As a result, were the Court to dismiss Petitioner’s § 2254 petition without prejudice for
lack of exhaustion, the dismissal would jeopardize the timeliness of any subsequent petition. See
Palmer, 276 F.3d at 781.
In light of the foregoing, the Court will stay these proceedings and hold them in abeyance
to permit Petitioner to exhaust his state court remedies. Petitioner shall, within thirty days of the
date of this opinion and the accompanying order, file his motion for relief from judgment in the
Kent County Circuit Court. This action will be stayed, and held in abeyance, until Petitioner files
a motion to amend his petition to include any subsequently exhausted claims—such motion must
be filed not later than 30 days after a final decision by the Michigan Supreme Court on Petitioner’s
unexhausted claims, and shall include a description of the newly exhausted claims and the dates
and substance of the decision at each step of state-court review. If Petitioner fails to comply with
the deadlines imposed in this order, the Court may dismiss the petition.
Petitioner’s motion to excuse exhaustion (ECF No. 3) will be denied as moot. The Court
will order this action to be administratively closed until such time as Petitioner files a motion to
amend his petition or a motion to lift the stay in accordance with the procedures set forth above.
Dated: March 31, 2026 /s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
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