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Childress v. Booker

April 28, 2010

ROBERT LEE CHILDRESS, #365065, PETITIONER,
v.
RAYMOND BOOKER, RESPONDENT.



The opinion of the court was delivered by: Honorable John Corbett O'Meara

Magistrate Judge Mark A. Randon

OPINION AND ORDER (1) SUMMARILY DISMISSING PETITION WITH PREJUDICE; AND (2) AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

Petitioner Robert Lee Childress is presently incarcerated at the Ryan Correctional Facility in Detroit, Michigan*fn1. Petitioner states that he is challenging a December 14, 2005 conviction, as a result of his entry of a guilty plea, for drawing on insufficient funds pursuant to Mich. Comp. Laws §750.131, and false pretenses. He claims that he was not incarcerated as a result of this conviction, but rather was fined $500.00. He has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Because Petitioner is not "in custody" under the conviction or sentence he is challenging, this Court lacks jurisdiction and will summarily dismiss the petition with prejudice.

I. BACKGROUND

Petitioner pled guilty to drawing on insufficient funds pursuant to Mich. Comp. Laws §750.131, and for false pretenses, and was convicted on December 14, 2005. He was fined $500.00. Petitioner admits in his habeas petition that he has not filed any post-conviction motions or state court appeals relative to this conviction.*fn2 On December 16, 2009, Petitioner filed the pending petition for a writ of habeas corpus asserting the following claims: (1) actual innocence, (2) unconstitutional seizure of a person, (3) violation of due process, (4) ineffective assistance of counsel, (5) police and prosecutorial misconduct, (6) malicious prosecution, and (7) violation of equal protection.

II. DISCUSSION

Rule 4 of the Rules Governing Section 2254 cases provides that the court shall promptly examine a petition to determine "if it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief." If the court determines that the petitioner is not entitled to relief, the court shall summarily dismiss the petition. McFarland v. Scott, 512 U.S. 849, 856 (1994) ("Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face."); see also Thrower v. City of Akron, 43 Fed. Appx. 767, 768-69 (6th Cir. 2002)(affirming district court's Rule 4 summary dismissal of habeas petition where petitioner failed to satisfy "in custody" requirement).

A federal district court has jurisdiction to entertain petitions for habeas corpus relief only from petitioners who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The Supreme Court has interpreted the "in custody" language to require that "the habeas petitioner be 'in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 1925 (1989). The Supreme Court has never held "that a habeas petitioner may be 'in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." Id. at 491, 109 S.Ct. at 1925 (emphasis in original). The collateral consequences of a conviction for which the sentence has completely expired are insufficient to render a petitioner "in custody" under § 2254(a). See id. at 492, 109 S.Ct. 1926.

In addition to Petitioner's admission that he was only fined and not incarcerated as a result of his December 14, 2005 conviction, The Michigan Department of Corrections' Offender Tracking Information System ("OTIS") likewise indicates that Petitioner was never incarcerated pursuant to the 2005 conviction. The Court is permitted to take judicial notice of information on OTIS. See Ward v. Wolfenbarger, 323 F. Supp. 2d 818, 821 n.3 (E.D. Mich. 2004). Petitioner, therefore, is not "in custody" relative to the conviction he challenges in his present petition. Consequently, this Court does not have jurisdiction to entertain Petitioner's application for habeas corpus relief.

III. CERTIFICATE OF APPEALABILITY

A petitioner must receive a certificate of appealability ("COA") in order to appeal the denial of a habeas petition for relief from either a state or federal conviction.*fn3 28 U.S.C. §§ 2253(c)(1)(A), (B). A court may issue a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a federal district court rejects a habeas claim on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). "A petitioner satisfies this standard by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying this standard, a district court may not conduct a full merits review, but must limit its examination to a threshold inquiry into the underlying merit of the petitioner's claims. Id. at 336-37. The Court concludes that jurists of reason would not find its assessment of the constitutional claims debatable or wrong. The Court thus declines to issue Petitioner a certificate of appealability.

IV. CONCLUSION

IT IS ORDERED that Petitioner's "Petition Under 28 U.S.C. ยง 2254 for Writ of Habeas ...


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